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2008 DIGILAW 876 (CAL)

Arup Ratan Paul v. Akshyabar Singh

2008-08-28

Prasenjit Mandal

body2008
JUDGMENT: 1. THIS application is at the instance of the plaintiff/petitioner and is directed against the order no. 17 dated 10. 08. 2005 passed by the learned Judge, Fifth Bench, Small causes Court at Calcutta in Ejectment Suit No. 61 of 2003-E whereby he has allowed the petition under Section 27 of the West Bengal premises Tenancy Act, 1997 and he has allowed the defendant/opposite party to file a written statement after 5 months beyond the stipulated period upon payment of Costs of rs. 500/ -. 2. THE plaintiff/petitioner filed the Ejectment Suit for recovery of khas possession on the ground of default in payment of rent, sub-letting, illegal occupation and / or encroachment upon other portion of the premises. In that suit, the defendant/opposite party appeared and he filed a written statement after 5 months beyond the stipulated period. The Court allowed the defendant/opposite party to file the said written statement of defence upon payment of costs of Rs. 500/-to the plaintiff/petitioner. By the impugned order, the learned Civil judge has also allowed the petition under Section 27 of the West bengal Premises Tenancy Act directing the plaintiff/petitioner to restore supply of electricity. Being aggrieved by such orders, the plaintiff/petitioner has preferred this application. Having considered the submission of the learned Advocates of both the sides and on perusal of the materials on record, I find that the plaintiff/petitioner has filed the suit for ejectment stating, inter alia, in paragraph 1 of the plaint that the rent of the premises is Rs. 325/- per month including electric charge of rs. 50/- per month payable in advance on or before 3rd day of each month according to English calendar month. This is an admission of the plaintiff/petitioner in paragraph 1 of the plaint. Such averment clearly indicates that there was electricity in the premises in suit. Dispute arose between the parties subsequently. It is the contention of the defendant/opposite party that the plaintiff/petitioner had disconnected electricity of his premises, and he had stopped supply of water to his tenanted premises. In this application, the plaintiff/petitioner has challenged the impugned order on two grounds namely, direction upon the plaintiff/petitioner to restore electricity and acceptance of the written statement filed after 5 months of the statutory period on payment of costs of Rs. 500/ -. 3. In this application, the plaintiff/petitioner has challenged the impugned order on two grounds namely, direction upon the plaintiff/petitioner to restore electricity and acceptance of the written statement filed after 5 months of the statutory period on payment of costs of Rs. 500/ -. 3. AS regards the first count of restoration of electricity, I find that from the paragraph 1 of the plaint, the plaintiff/petitioner is bound to supply the electricity to the premises in suit. Anyhow supply of electricity have been stopped when there was a dispute between the parties. In the given circumstances, I hold that the Court is justified in allowing the application under Section 27 of the West Bengal Premises Tenancy act directing the plaintiff/petitioner to restore supply of electricity. It is his first duty to restore electricity because he is claiming rent including charge for electricity payable in advance. So, I do not find any illegality or irregularity in the matter. 4. SO far as the second count of acceptance the written statement, I find that by the impugned order learned Civil Judge has allowed the prayer of the defendant/opposite party for acceptance of the written statement upon payment of costs of rs. 500/-though the said written statement was filed after five months beyond the stipulated period. The defendant/opposite party has filed the affidavit-in-opposition stating, inter alia, that the plaintiff/petitioner has accepted the costs of Rs. 500/- as awarded by the Court for filing the belated written statement of defence. When the plaintiff/petitioner has accepted the costs, he has practically waived the ground of delay. So he cannot agitate the ground of delay afterwards. The plaintiff/petitioner has filed affidavit-in-reply which does not deny the fact of acceptance Rs. 500/- as costs for the belated written statement of defence. The matter ends there and the plaintiff/petitioner cannot be allowed to raise such point subsequently. The learned Advocate for the plaintiff/petitioner has contended that the petition for acceptance of written statement was allowed behind the back of the plaintiff/petitioner and so the impugned order should be set aside. Upon perusal of the impugned order, I find that the learned Civil Judge has passed one compact order disposing many applicants out of which the two matters referred to above have been challenged. Upon perusal of the impugned order, I find that the learned Civil Judge has passed one compact order disposing many applicants out of which the two matters referred to above have been challenged. The learned Civil Judge (Junior Division) has clearly mentioned in the first paragraph of the impugned order that both the parties have filed their respective haziras and that he heard both the sides. Thereafter many matters have been disposed of on the selfsame day. So the contention of the learned Advocate for the plaintiff/petitioner that the matter has been disposed of behind the back of the plaintiff/petitioner cannot be accepted. Above all, all such grievance becomes set at rest upon acceptance of the costs of rs. 500/-by the plaintiff/petitioner from the defendant/opposite party. 5. THEREFORE, I hold that there is no merit in the application. Accordingly, this application is dismissed for default. There will be no order as to costs.