Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 264 (CAL)

Lambodhar Shaw v. Pannalal Shaw

2009-03-27

PRASENJIT MANDAL

body2009
Judgment : PRASENJIT MANDAL, J. (1) This application is directed against the order no.15 dated 30.08.2008 and order no.18 dated 22.09.2009 passed by the learned Chief Judge, Small Causes Court at Calcutta in Ejectment Suit No.275 of 2007 whereby by the first order the learned Trial Judge allowed an application under Order 6 Rule 17 of the Code of Civil Procedure filed by the defendant/petitioner as well as allowed the application under Order 39 Rule 7 of the C.P.C. filed by the plaintiff/opposite party for inspection of his premises. By the second order the learned Trial Judge dismissed the application under Section 151 of the C.P.C. filed by the defendant/petitioner for stay of the operation of the order dated 30.08.2008. (2) The fact of the case in short is that the plaintiff/opposite party filed the ejectment suit no.275 of 2007 for ejectment of the defendant/petitioner from the premises in suit described in the schedule of the plaint on the ground of default, reasonable requirement, etc. The plaintiff/opposite party filed an application for local inspection of his own premises but that application was allowed without any observation by the learned Trial Judge. One partition suit was filed for effecting partition of the suit property along with other properties amongst the plaintiff/opposite party and his co-owners. A preliminary decree was passed in that suit declaring the plaintiff/opposite party having 1/6th share in the properties of the parties. That suit is pending at present for passing the final decree on the basis of the report of the partition commissioner. The defendant/petitioner has come up with the application for stay of the suit on the ground that the plaintiff/opposite party is not the absolute owner of the suit premises and the dispute between the plaintiff/opposite party and his co-owners is still pending. So the suit should be stayed till the date of passing the final decree for partition. The Court did not make any observations while the application for local inspection was allowed. So the impugned orders should be set aside. The plaintiff/opposite party is contesting the application. (3) The learned Advocate for the defendant/petitioner contends that the ejectment suit being one on the ground of reasonable requirement, the plaintiff/opposite party is required to show that he is the owner of the suit property. So the impugned orders should be set aside. The plaintiff/opposite party is contesting the application. (3) The learned Advocate for the defendant/petitioner contends that the ejectment suit being one on the ground of reasonable requirement, the plaintiff/opposite party is required to show that he is the owner of the suit property. But as per rent receipt appearing at page 20 of the petition, one Saraswati Devi, received the rent as a trustee of the suit property and the plaintiff/opposite party is not the owner of the same at all. As the dispute between the plaintiff/opposite party and his co-owners is still pending so the plaintiff/opposite party is not the owner of the suit property and so the suit should be stayed. He also contended that the application under Order 39 Rule 7 of the C.P.C. was disposed of without disclosing the ground for disposal of the same but he has no grievance for allowing the application of the defendant/petitioner under Order 6 Rule 17 of the C.P.C. On the other hand, the learned Advocate for the plaintiff/opposite party supported the impugned orders. (4) Upon due consideration of the submissions made by the learned Advocates of both the sides and on perusal of the materials on record, I find that it is not in dispute at all relating to allowing the application under Order 6 Rule 17 of the C.P.C. filed by the defendant/petitioner. By the first order dated 30.08.2008, the learned Trial Judge allowed the application under Order 39 Rule 7 of the C.P.C. This was done probably on the ground to know the extent of possession of the accommodation of the plaintiff/opposite party in order to decide the issue of reasonable requirement of the plaintiff/opposite party. Though, apparently the order might be justified but the Trial Court did not assign any reason for allowing the same. So I am of the view that the order impugned relating to allowing the application under Order 39 Rule 7 of the C.P.C. should be set aside. (5) As regards the other order dated 22.09.2008 relating to stay of operation of the order dated 30.08.2008, I hold, that this application has been filed with the sole object of prolonging the litigation. (5) As regards the other order dated 22.09.2008 relating to stay of operation of the order dated 30.08.2008, I hold, that this application has been filed with the sole object of prolonging the litigation. The contention of the learned Advocate for the defendant/petitioner that unless and until the dispute relating to ownership is settled the suit could not proceed, I hold, cannot be accepted because dispute between the plaintiff/opposite party and his co-owners is not the dispute relating to title over other properties but a matter of splitting up the joint ownership into several ownerships. According to an agreement, the plaintiff/opposite party was to get the suit premises and in fact from the rent receipt, I find that the plaintiff/opposite party collected rent from the defendant/petitioner. So it is clear that he inducted the tenant in respect of the suit premises. Moreover, the application under Section 17(2) of the West Bengal Premises Tenancy Act had been disposed of and the defendant/petitioner is depositing rents in the Court. Moreover, as per decisions reported in AIR 1968 Cal 532 the plaintiff/opposite party is required to file the suit because he inducted the defendant/petitioner as tenant and he issued the notice to quit. If all the co-owners are joint as landlords the suit would be bad. Similarly, the decision reported in AIR 1978 SC 835 all the coowners/landlords need not be impleaded as landlords in the suit for ejectment. When the plaintiff/opposite party was acting on behalf of all the landlords with regard to induction of a tenant, collection of rent, etc. he should be considered as landlord for all practical purposes in view of the decision reported in AIR 1977 SC 1599 . (6) On the other hand, the learned Advocate for the defendant/petitioner has referred to the decision reported in (2006) 2 SCC 724 to show that when there is a dispute amongst the co-owners plaintiff/opposite party alone is not entitled to file the suit. With due respect to the learned Advocate for the defendant/petitioner, I hold, that this ruling cannot be accepted at all because the situation is altogether different. Moreover, as per agreement between the plaintiff/opposite party and his coowners, the plaintiff/opposite party alone is entitled to have possession of the premises in suit. The principles governing the grounds of stay have not been fulfilled in the instant case. Moreover, as per agreement between the plaintiff/opposite party and his coowners, the plaintiff/opposite party alone is entitled to have possession of the premises in suit. The principles governing the grounds of stay have not been fulfilled in the instant case. (7) This being the position, I am of the view that the learned Trial Judge has rightly rejected the application under Section 151 of the C.P.C. by the order impugned dated 22.09.2008. Accordingly, the present revisional application succeeds in part. It is, therefore, allowed in part. Save the portion of the order impugned relating to allowing the application under Order 39 Rule 7 of the C.P.C. rest portion of the orders impugned is hereby confirmed. (8) The learned Trial Judge is directed to hear the application under Order 39 Rule 7 of the C.P.C. along with its objections afresh and to pass a speaking order thereon. The application must be disposed of within 30 days from the date of communication of the order. Accordingly, the application is thus disposed of with the above observations. There will be no order as to costs.