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2010 DIGILAW 744 (CAL)

Arabinda Nath Das v. Mohitosh Mondal

2010-07-06

KALIDAS MUKHERJEE

body2010
Judgment :- Kalidas Mukherjee, J: 1. This is an application for Review under Section 114 and Order 47 Rule 1 of the Code of Civil Procedure against the judgment of this Court dated 12.2.2007. The Revisional Application bearing C.O. No. 3033 of 2005 was filed by the petitioners under Article 227 of the Constitution of India against Order No. 22 dated 21.5.1998 passed by learned Civil Judge (Junior Division), 2nd Court, Contai in T.S. No. 199 of 1995 allowing thereby the application for local investigation filed by the defendant. The suit was instituted by the plaintiffs against the defendant for eviction from the disputed premises, for recovery of possession and mesne profits. The Revisional Application was disposed of holding that the learned Court below rightly allowed the application for local investigation and there was no ground to interfere with the order impugned. The application under Article 227 of the Constitution of India was dismissed on 12.2.2007. 2. After the passing of the said judgment the petitioners of the Revisional Application has filed this Review Application. The learned Counsel appearing for the petitioners submits that the petitioners are the transferee landlords and the previous landlord was Sarbeswar Jana. It is contended that the O.P. is a tenant in ‘A’ schedule property at a monthly rental Rs.80/- as inducted by Sarbeswar Jana and after the transfer of the suit premises to the present plaintiffs/petitioners the erstwhile owner served a notice upon the tenant opposite party informing him of such transfer and asked him to pay rent to the plaintiffs/petitioners, but, nothing was paid by the defendant towards the rent. It is the contention of the learned Counsel for the petitioners that since it is a suit for eviction under Section 106 of the Transfer of Property Act., the O.P. cannot take any plea and he is liable to be evicted. The learned Counsel in support of his contention has submitted the decisions reported in (2006)5 SCC 532 [Bhogadi Kannababu and others Vs. Vuggina Pydamma and others]; 1988(3) SCC 137 [Tej Bhan Madan Vs. II Additional District Judge and others]. 3. The learned Counsel appearing for the O.P. herein submits that as per the averment made in the written statement, the O.P. was never a tenant under Sarbeswar Jana or the plaintiffs. Vuggina Pydamma and others]; 1988(3) SCC 137 [Tej Bhan Madan Vs. II Additional District Judge and others]. 3. The learned Counsel appearing for the O.P. herein submits that as per the averment made in the written statement, the O.P. was never a tenant under Sarbeswar Jana or the plaintiffs. It is contended that the shop of the O.P./defendant is situated in a different land appertaining to plot No. 233 and not on plot No. 101. The learned Counsel submits that the shop of the O.P. is situated on Government khas land and there is no ground to review the earlier order passed by this Court. 4. The learned Court below held that the defendant contended that he was not a tenant in plot No. 101 as alleged by the plaintiff, but, he was occupying premises in plot No. 233 of Syedpore Mouza. The learned Court below held that the plaintiff filed series of rent receipts in respect of plot No. 101; however, this question regarding issuance and acceptance of rent receipts would be decided at the trial. The learned Court held that the moot question was whether the suit premises was within plot No. 101 or in plot No. 233 and under such circumstances there was no other alternative but to allow the petition. The learned Court below took into consideration that the defendant denied the tenancy and set up a specific case that he was occupying the premises in Khas land of the Government and he started running the business by raising construction. That is why learned Court below held that the moot question was whether the suit premises was neither plot No. 101 or in plot No. 233. 5. In the Trial Court the plaintiffs filed a petition for local inspection of the disputed premises to show that the premises was in dilapidated condition. The learned Advocate Commissioner held inspection and in the field note he noted that according to the defendant the suit premises was not within the suit plot. Thereafter the defendant filed application praying for local investigation. 6. The learned Advocate Commissioner held inspection and in the field note he noted that according to the defendant the suit premises was not within the suit plot. Thereafter the defendant filed application praying for local investigation. 6. Against the order of the learned Civil Judge (Junior Division) a Revisional Application was preferred before the learned Additional District Judge, wherein the leaned Judge while recording the respective cases of the parties mentioned that the defendant filed written statement stating, inter alia, that the defendant was not inducted by Sarbeswar Jana on plot No. 101 nor any rent was realised from him, that, the defendant occupied Khas land of the Government and subsequently has been running business by constructing shop room. The learned Judge further recorded the contention of the defendant that along with one Purander Jana he decided to occupy road side Khas land on plot No. 233 and, as such, they jointly constructed four rooms with common shed over it and then started business. The learned Judge, however, dismissed the Revisional Application on the ground that it was not maintainable and granted liberty to file an application before the Hon’ble Court under Article 227 of the Constitution of India. 7. None appeared on behalf of the O.P. in the Revisional Application and this Court after considering the submission made by the learned Counsel for the petitioners and upon going through the materials on record found that the learned Court below was justified in allowing the application for local investigation and there was no ground to interfere with the order impugned. 8. It is not the case of the petitioners that a new and important matter was discovered which after exercise of due diligence was not within their knowledge or could not be procured by them at the time the order was passed. It is also not a case that some mistake or error apparent on the face of the record occurred. 9. The point raised by the petitioners in the Review Application amounts to reopening the issue which has already been decided in the Revisional Application. This is not permissible within the scope and ambit of Order 47 Rule 1 of the Code of Civil Procedure. 10. The Review Application, therefore, stands dismissed. There will be no order as to costs. 11. Let a copy of this order be sent to the learned Court below immediately. 12. This is not permissible within the scope and ambit of Order 47 Rule 1 of the Code of Civil Procedure. 10. The Review Application, therefore, stands dismissed. There will be no order as to costs. 11. Let a copy of this order be sent to the learned Court below immediately. 12. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.