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2011 DIGILAW 961 (CAL)

Kanailal Chowdhury v. Ashok Kumar Chowbey

2011-07-20

JOYMALYA BAGCHI

body2011
JUDGMENT Joymalya Bagchi, J. 1. THIS application is directed against the order dated 22nd December, 2006 passed in Misc. Appeal No. 285 of 1998 arising out of Case No. H-5 of 1992, rejecting the review application taken out by the petitioner/respondent pursuant to the direction given by this Hon’ble Court in its order dated 19.02.2006 in C.O. No. 3906 of 2006. 2. THE facts of the case are as follows: One Kunja Behari Chowbey (the predecessor-in-interest of the opposite party/appellant) took out a proceeding before the Thika Controller, Howrah being case No. H-5 of 2006, praying for recording his name as thika tenant in the relevant records under Section 6 of Calcutta Thika Tenancy Act, 1981. THE learned Thika Controller by order dated 22.12.1992 rejected the said application. Being aggrieved by said order, the said Kunja Behari Chowbey filed a Misc. Appeal No. 29 of 1993 before the learned District Judge, Howrah. THE appeal was allowed and the matter was remanded to the Thika Controller for fresh adjudication. THE Thika Controller again by order dated 22.02.1998 rejected the claim of the said Kunja Behari Chowbey. Another appeal was preferred against the said order being Misc. Appeal No. 285/1998. The appellate court by its judgement and order dated 03.06.2003 reversed the order of the Thika Controller and held him as a thika tenant. Being aggrieved by the order of the appellate court, the petitioner/respondent namely, Kanailal Chowdhury filed an application under Article 227 of the Constitution of India being C.O. No. 1550 of 2003 which was allowed to be withdrawn with liberty to file a review application before the appellate court. Accordingly, the petitioner/respondent filed a review application. 3. THE said review application was dismissed by the appellate court on 30.06.2006. THE petitioner/respondent filed an application under Article 227 of the Constitution of India being C.O. No. 3086 (W) of 2006 assailing the said order. In the said application, the petitioner/respondent pleaded that the title between the parties had been finally decided in Title Suit No. 21 of 1949 wherein Kunja Behari Chowbey was declared as premises tenant under the petitioner/respondent and hence the proceeding before the appellate court was barred by principle of res-judicata. In the said application, the petitioner/respondent pleaded that the title between the parties had been finally decided in Title Suit No. 21 of 1949 wherein Kunja Behari Chowbey was declared as premises tenant under the petitioner/respondent and hence the proceeding before the appellate court was barred by principle of res-judicata. In the judgement and order dated 19.09.2006 passed by the Honble Justice Pranab Kumar Deb (as His Lordship the was) it has been observed as follows : In hearing the appeal as well as review application, the appellate court did not consider the aspect of res-judicata. THE findings made in Title Suit No. 21 of 1949 were not looked into. This matter should be given a fresh look. 4. ACCORDINGLY, in disposing of the revisional application, direction is given to the learned appellate court to rehear the review application in Misc. Appeal No. 285 of 1998 on the issues raised in this revisional application. It may be noted that in disposing of the revisional application, this court has not gone into the merits of the contentions of the parties to the suit. All the questions have been left open for final decision by the appellate court. The review application is required to be disposed of by December, 2006. Pursuant to such order of remand the appellate court took up the review petition for hearing afresh and by the impugned order dated 22nd December, 2006 dismissed the same both on merits as well as on the technical ground that the said application was not in proper form and the same was barred by limitation. The learned lawyer on behalf of the petitioner/respondent submitted that the appellate court was patently in error in coming to the finding that the subject matter of the suit premises related to holding No. 6, Gopal Mukherjee Lane, (previously known as Ghola Danga Lane) while the decree passed in Title Suit No. 21 of 1949 and affirmed the Title Appeal No. 83 of 1949 related to 6/1, Ghola Danga Lane (presently known as Gopal Mukherjee Lane). He drew my attention to the order dated 22.09.1998 passed by the learned Thika Controller, Howrah, wherein the Thika Controller, Howrah, has, inter alia, held that although the predecessor-in-interest of opposite party/appellants have claimed Thika Tenancy in respect of holding No. 6, Gopal Mukherjee Lane, the land with structure actually in his occupation is a portion of holding No. 6/1 and not holding no. 6, Gopal Mukherjee Lane. He has further drawn my attention to the contrary findings recorded by the appellate court in the impugned order. 5. A perusal of the impugned order would show that it has been recorded in the said order that the learned lawyer for the opposite party/appellants had admitted that the subject matter of the present dispute is in respect of 6/1, Gopal Mukherjee Lane (previously known as Ghola Danga Lane). Thereafter, on perusal of the certified copy of the decree passed in Title Suit No. 21 of 1949 the appellate court recorded that the subject matter of dispute in the said Title Suit was also 6/1, Ghola Danga Lane (presently Gopal Mukherjee Lane). Inspite of such finding, the appellate court came to a patently illegal conclusion that the judgement and decree passed in Title Suit No. 21 of 1949 affirmed in Title Appeal No. 285 of 1949 has got no connection with the present proceeding and related to a different premises. 6. WITH regard to the issue as to the review petition was not in proper form and barred by limitation, the learned lawyer for the petitioner sought leave of this court to file a review application afresh in proper form. The learned lawyer appearing for the opposite party submitted that no review petition is maintainable in the facts and circumstances of the instant case and that even the earlier review petition was not in proper form and was also barred by limitation. It is an admitted position that by order dated 19.09.2006 passed in C.O. No. 3086 of 2006 this Hon’ble Court had remanded the matter to the appellate Court for consideration on merits. I find that the dismissal of the review petition of the petitioner/respondent on the ground that the decree passed in Title Suit No. 21 of 1949 affirmed in Title Appeal No. 285 of 1995 relates to a different premises suffers from manifest illegality and is contrary to materials on record and is set aside. 7. I find that the dismissal of the review petition of the petitioner/respondent on the ground that the decree passed in Title Suit No. 21 of 1949 affirmed in Title Appeal No. 285 of 1995 relates to a different premises suffers from manifest illegality and is contrary to materials on record and is set aside. 7. THE other grounds for dismissal, namely, that the review petition was not proper form and was not accompanied with an application for condonation of delay though the same was filed beyond time, though justified, are technical in nature. In the case of M/s. Abhijit Tea Co. Pvt. Ltd. V. M/s. Terai Tea Co. Pvt. Ltd. reported in AIR 1995 Cal 316 it has been held that a second review application is maintainable when earlier application was rejected as being not in form. Applying the said ratio, I am inclined to give liberty to the petitioner/respondent to file a review petition afresh in proper form so that the issue remanded for decision by an earlier order passed by this Court may be decided on merits in accordance with law. 8. I therefore, set aside the impugned order dated 22.12.2006 in Misc. Appeal No. 285 of 1998 arising out of H-5 of 1992 to the extent it dismissed the review petition on the ground that the decree in Title Suit No. 21 of 1949 affirmed in Title Appeal No. 285 of 1995 related to a different premises. I however, grant liberty to the petitioner/respondent to file a fresh review petition in proper form along with an application under Section 5 of the Limitation Act before the appellate court within a month from the date of this order, if they are so advised. In the event such applications are filed, the learned trial court would consider and dispose of the same as expeditiously as possible and in accordance with law. There shall be no order as to costs.