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2012 DIGILAW 463 (CAL)

Manasi Ghosh v. Sushil Kumar Konar

2012-05-16

PRASENJIT MANDAL

body2012
Judgment :- Prasenjit Mandal, J. This application is at the instance of the defendants and is directed against the Order No.9 dated September 29, 2007 passed by the learned Civil Judge (Junior Division), 1st Court, Hooghly in Title Suit No.117 of 2007 thereby rejecting the application for stay and the Order No.13 dated December 7, 2007. The plaintiff/opposite party herein instituted a suit being Title Suit No.117 of 2007 for declaration that the plaintiff is a tenant of the suit premises under the defendants, permanent injunction and other reliefs. The defendants are contesting the said suit by denying the material allegations raised in the application. By the impugned order, the learned Trial Judge has rejected the application for stay. The learned Trial Judge has also directed the defendant No.3, by the order dated December 7, 2007, to open the main gate of the suit premises within 7 days after passing of the order. Being aggrieved, this application has been preferred. 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 it is a specific case of the defendant that he has been possessing the suit premises as a bona fide tenant since 1972 and he has been enjoying electricity at the suit premises. He has been depositing rent with the rent controller as the landlord refused to take rent from him. Upon perusal of the materials-on-record, it reveals that the plaintiff has already filed some rent receipts and challans to show that he is a statutory tenant and that he is in possession of the suit premises. So, unless there is any positive evidence to the effect that the plaintiff had delivered possession of the suit premises in favour of the defendants, it would be presumed that he is in possession of the suit premises. The defendants have contended that the plaintiff had taken all his belongings from the premises in suit and at present he is residing elsewhere. The defendants have contended that the plaintiff had taken all his belongings from the premises in suit and at present he is residing elsewhere. On the other hand, the plaintiff/opposite party has contended that owing to non-availability of electricity, he has been compelled to take shelter in the house of his daughter and as such, when he came to the premises in suit, he found that the defendant No.3 who was the brother of the landlord and was looking after the premises in suit had locked the main gate of the suit premises causing prohibition of the plaintiff/tenant from making entry into his tenanted premises. Under the circumstances, the impugned order has been passed. The question whether the plaintiff/tenant had delivered vacant possession in favour of the landlord is to be determined at the time of trial of the suit and at present nothing could be shown on behalf of the defendants that the plaintiff/tenant had delivered vacant possession of the suit premises. Under the circumstances, the learned Trial Judge is justified in passing the impugned order directing the defendant No.3 to open the main gate of the suit premises within 7 days after passing of the order. I do not find any illegality or material irregularity in passing the impugned orders. In coming to such decision I have also considered the decision of Indian Cable Company Ltd. V. Smt. Sumitra Chakraborty reported in AIR 1985 Calcutta 248 referred to by the learned Advocate for the opposite party wherein it has been clearly stated that unless it is shown that the possession of tenancy had been taken away from the plaintiff, it shall be presumed that the tenancy is still continuing in favour of the plaintiff/tenant and in such circumstances, mandatory injunction as sought for could well be granted. In that view of the matter, I am of the view that there is no scope of interference with the impugned order. 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.