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2012 DIGILAW 370 (CAL)

Bharat Thakkar v. Surjya Kanta Mullick

2012-04-27

PRASENJIT MANDAL

body2012
Judgment Prasenjit Mandal, J. 1. THIS application is at the instance of the defendant and is directed against the judgment and order dated October 26, 2006 passed by the learned Additional District Judge, 6th Court, Alipore in Misc. Appeal 31 of 2004 thereby affirming the judgment and order dated December 5, 2003 passed by the learned Trial Judge in Misc. Case No.19 of 2001. 2. THE short fact is that the plaintiffs / opposite parties herein instituted a suit being Title Suit No.55 of 2000 for recovery of possession, damage and mesne profits against the petitioner. In that suit, the defendant / petitioner herein entered an appearance and filed two applications under Section 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956 and he started depositing monthly rent in the Court under challans. THE learned Advocate for the defendant / petitioner took steps in the Court. He filed applications praying for time to file written statement on September 7, 2000 and November 9, 2000 and the Court fixed for written statement then on December 11, 2000. Thereafter, the defendant did not take any step and as such, the Court fixed next date on February 8, 2001 for ex parte hearing. Ultimately, the suit was heard ex parte on September 16, 2001 and the same was decreed directing the petitioner to deliver vacant possession of the suit premises within two months. THE petitioner did not take any step. Thereafter, the plaintiffs / decree-holder filed an application for execution of the decree. The writ of delivery of possession was issued and the petitioner resisted the execution against the delivery of possession. Ultimately, possession was delivered with the help of police. It is only at that stage, the petitioner has come up for setting aside the ex parte decree by filing an application under Order 9 Rule 13 of the C.P.C. That application was rejected by the learned Trial Judge. 3. THE misc. appeal preferred by the petitioner was also dismissed. Being aggrieved by such order, this application has been preferred. 4. NOW, the question is whether the impugned order should be sustained. 3. THE misc. appeal preferred by the petitioner was also dismissed. Being aggrieved by such order, this application has been preferred. 4. NOW, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the defendant / petitioner herein has stated before the learned Trial Judge that the learned Lawyer for the petitioner would prepare the written statement and would file the same after two years and he assured the petitioner not to be worried. Such statement of the petitioner clearly indicates that the defendant was going to take dilatory tactics to avoid disposal of the said suit. It may be pointed out that the defendant was aware of the institution of the said suit and he took steps under Sections 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956. The defendant has, therefore, a duty to take note of the next date fixed by the Court. In this regard, he has stated that he relied upon his Lawyer, Mr. Srijib Halder. The petitioner examined himself as P.W.1 and he has also examined his Lawyer, Mr. Halder as P.W.3 who has clearly deposed that he did not take note of dates. But, his law clerk used to note the dates of the suit and he has also stated that in his diary, no date was found for the year 2001 in respect of the particular suit. But it is surprising to note that the said lawyer, P.W.3 has failed to mention the name of his law clerk who used to note and post the dates of the cases. The learned Trial Judge has also observed that there is an interpolation of the date of February 8, 2001. 5. IT may be noted herein that delivery of possession with the help of police was not given all of a sudden. According to the provisions of Order 21 Rule 35 of the C.P.C., first writ of delivery of possession is to be issued and it is to be executed by the belief and if there is any resistance, police help is rendered. But, in that case before grant of police help, the appropriate steps are taken for issuance of notice upon the judgment debtor. But, in that case before grant of police help, the appropriate steps are taken for issuance of notice upon the judgment debtor. On perusal of materials on record, I find that such a recourse was adopted in the application for execution and thereafter, the possession was delivered with the help of police. The petitioner did not take any step after filing of the application under Sections 17(1) and 17(2) of the 1956 Act and he was quite silent for a considerable period. No convincing reason is forthcoming. Even I find that the two process servers have deposed against the petitioner and the learned Trial Judge has observed that there is no ground to disbelieve in the statement of the process server. The petitioner was, therefore, quite aware of the ex parte decree passed against him and the institution of the execution case against him. He came to Court for setting aside the decree after being evicted with the help of the police. 6. BOTH the Courts below have come to the concurrent findings based on evidence. The findings as noted above cannot, therefore, be said to be perverse at all. Therefore, it cannot be held that there has been a manifest failure of justice by passing the impugned order by the Lower Appellate Court. The impugned order, therefore, does not suffer from perversity and in such cases in exercising the jurisdiction of superintendence under Article 227 of the Constitution, Court should not interfere with the concurrent findings of the Courts below. Mr. Abhrajit Mitra, learned Advocate appearing for the petitioner has contended that since the plaintiff is in possession of the suit property, let him remain in possession of the same and an opportunity should be given to his client to proceed with the suit. He has contended that his client was eager to proceed with the suit, but, his client did not get any information from his lawyer and as such, he did not take any step for a considerable period. But the delivery of possession with the help of police was granted on August 17, 2001 and thereafter, on August 24, 2008 his client filed the application for setting aside the ex parte decree passed against his client. Therefore, the petitioner was very much eager to proceed with the case. 7. But the delivery of possession with the help of police was granted on August 17, 2001 and thereafter, on August 24, 2008 his client filed the application for setting aside the ex parte decree passed against his client. Therefore, the petitioner was very much eager to proceed with the case. 7. HE has also contended that the application under Section 17(2) of the Act, 1956 was not disposed of and so, the ex parte order should not be supported. 8. ON the contrary, Mr. Saptangshu Basu appearing for the opposite parties submits that the intention of the defendant / petitioner herein is very much clear from his statement that he would file written statement after two years as per advice of his lawyer and he was not required to be worried about the matter, although there is specific provision for filing the written statement within 90 days as per Order 8 Rule 1 of the C.P.C. Therefore, the defendant has taken the dilatory tactics, so that the suit may not be disposed of at an early date. He has also referred to the decision of Mrs. Labhkuwar Bhagwani Shaha and ors. v. Janardhan Mahadeo Kalan and anr. reported in AIR 1983 SC 535 and thus, he submits that concurrent findings should not be set aside in exercising the power of superintendence under Article 227 of the Constitution. 9. IN this regard, I am of the view that the jurisdiction under Article 227 of the Constitution must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset the findings of fact which falls in the domain of an Appellate Court only. Reliance is placed on (1999) 9 SCC 264 . IN the instant case, since the Appellate Court has also held the concurrent view on findings of fact, in consideration of Mrs. Labhkuwar Bhagwani Shaha (supra) I am of the opinion that the concurrent findings of fact based on the evidence on record, should not be interfered with. 10. IN that view of the matter, I am of the opinion that this application is devoid of merits. There is no scope of interference at all. The application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. 10. IN that view of the matter, I am of the opinion that this application is devoid of merits. There is no scope of interference at all. The application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.