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2015 DIGILAW 960 (CAL)

Debaki Nandan Maiti v. Aniruddha Sen

2015-12-11

ASHIS KUMAR CHAKRABORTY

body2015
JUDGMENT This revisional application is at the instance of the landlords-plaintiffs in Ejectment Suit No.14 of 2012 pending before the learned 2nd Civil Judge (Junior Division) at Alipore. The petitioners have challenged the Order No. 90 dated December 04, 2015 passed by the learned Court below rejecting their application under Order XXXIX Rule 7 read with Section 151 of the Code of Civil Procedure, 1908 praying for, appointment of an Advocate Commissioner for the purpose of carrying commission work at their flat situated on the first floor of Premises No. 46A, Harish Chatterjee Street, Kolkata- 700 026. Yesterday, when this application was taken up for hearing the petitioners were directed to serve a copy of this application on the learned advocate representing the opposite party, who was appearing before this court in connection with another revisional application being CO NO. 4293 of 2015 between the parties. Since there is some urgency in this appliction as mentioned hereinafter, with consent of parties, the revisional application is taken up for hearing for final disposal. Shortly stated the facts of the case giving rise to this revisional application are as follows. The petitioners have filed the ejectment suit against the opposite party for recovery of possession of the suit property situated at 36/1, Old Ballygunge Second Lane, Kolkata- 700 019. The grounds of eviction urged by the plaintiffs-petitioners in the said ejectment suit are, inter alia, reasonable requirement of the suit property for their own use and occupation as also for building and rebuilding under Sections 6(c) and 6(d) of the West Bengal Premises Tenancy Act, 1997. After the conclusion of the evidence of the respective witnesses of the respective parties, the plaintiffs-petitioners filed an application for amendment of the plaint to incorporate the fact that their son has shifted from one tenanted property to another tenanted property. The learned Court below allowed the said application. In order to prove the amended portion of the plaint, the plaintiffs-petitioners filed an application for re-examination of the PW-1 and the same was also allowed by the learned Court below. During the cross-examination of PW-1, the defendant-opposite party confronted him with a deed of conveyance dated January 17,2014 relating to a flat of Premises No. 476A, Harish Chatterjee Street but the PW-1 denied the said deed of conveyance. During the cross-examination of PW-1, the defendant-opposite party confronted him with a deed of conveyance dated January 17,2014 relating to a flat of Premises No. 476A, Harish Chatterjee Street but the PW-1 denied the said deed of conveyance. Thereafter, on November 23,2015 the defendant-opposite party filed an application for re-examination of himself which was allowed by the learned Court below on November 27,2015 and during such re-examination the opposite party-defendant marked the said conveyance as Exhibit “D” of the proceeding. During the pendency of the said application of the defendant-opposite party praying for re-examination of himself, on November 26,2015 the plaintiffs-petitioners filed an application for reexamination of the PW-1 to clarify certain facts in respect of the said Deed of Conveyance relating to the said flat at Premises No.46A, Harish Chattrerjee Street. Although, by the order dated November 27,2015 the learned Court below had allowed the application of the defendant-opposite party for his reexamination in connection with the said conveyance dated January 17,2014, but by the order dated November 30,2015 the learned Court below rejected the application of the plaintiffs-petitioners for re-examination of the PW-1. The plaintiffs-petitioners challenged the said order dated November 30,2015 by filing a revisional application being CO No.4293 of 2015 before this Court. After hearing the learned counsel appearing for the respective parties, by an order dated December 10,2015 this Court allowed the revisional application being CO No.4293 of 2015 and directed the PW-1 to be present before the learned Court below, for his re-examination, on the next date of hearing of the suit fixed on December 14,2015. In the meantime, the plaintiffs-petitioners filed the aforementioned application under Order 39 Rule 7 read with Section 151 of the Code of Civil Procedure, 1908 which has been rejected by the learned Court below by passing the impugned order. From the impugned order it appears that in a Special Leave Petition filed by one of the parties to the ejectment suit, by an order dated April 21,2015 the Hon’ble Supreme Court directed that the ejectment suit pending before the learned Court below shall be disposed of by the end of December 2015 and the factum of disposal of the said suit shall be intimated to the Hon’ble Supreme Court instantly. By the impugned order the learned Court below has rejected the application of the plaintiffs-petitioners for appointment of an Advocate Commissioner on the ground that in the application there is no Schedule mentioning the points on which the proposed commission work will be held and by filing such application the plaintiffs-petitioners are trying to collect evidence. The other ground on which the learned Court below has rejected the application of the plaintiffs-petitioners is the aforementioned direction of the Hon’ble Supreme Court passed in the said order dated April 21,2015. Mr. Aniruddha Chatterjee, learned Advocate appearing for the plaintiffs-petitioners submitted that it is settled law that when a landlord sues his tenant for his eviction from the suit property on the ground of reasonable requirement for his own use and occupation, whether under the previous West Bengal Premises Tenancy Act, 1956 or the present West Bengal Premises Tenancy Act, 1997, the plaintiff-landlord has to prove that they require the suit premises for his own use and occupation and the landlord may prove by local inspection that he is not in possession of any reasonable suitable accommodation except the suit property. In support of such contention Mr. Chatterjee relied upon the decision of this Court delivered by Tarun Chatterjee, J ( as His Lordship then was) in Amar Singh Saini v. Rup Chand Das & Anr. reported in [ 1995(2) CLJ] 496 . He further submitted that from the copy of the application of the plaintiffs-petitiners, a copy whereof has been annexed to the instant application, it is evident that in the said application the plaintiffs-petitioners have categorically stated the Schedule of Commission Work to be carried out at the said first floor of flat situated at 46A, Harish Chatterjee Street, Kolkata- 700 026 and as such the impugned order passed by the learned Court below rejecting the application of the plaintiffs-petitioners on the ground of absence of the schedule of Commission Work in the application is vitiated by patent illegality. However, Mr. Chatterjee was unable to explain the fact as to why the plaintiffs-petitioners on their own did not disclose the said conveyance dated January 17,2014 whereby they themselves along with their son have purchased the first floor flat at Premises No. 46A, Harish Chatterjee Street, Kolkata- 700 026. However, Mr. Chatterjee was unable to explain the fact as to why the plaintiffs-petitioners on their own did not disclose the said conveyance dated January 17,2014 whereby they themselves along with their son have purchased the first floor flat at Premises No. 46A, Harish Chatterjee Street, Kolkata- 700 026. No doubt we are shortly approaching the end of December 2015 and the learned Court below is required to comply with the said direction passed by the Hon’ble Supreme Court in the said order dated April 21,2015. Had the plaintiffs-petitioners disclosed the said deed of conveyance on their own much earlier the present situation could have been avoided. Mr. Debabrata Dasgupta, learned advocate appearing for the defendant-opposite party submitted that the defendant-opposite party is the tenant in respect of the suit property at 36/1, Old Ballygunge Second Lane, Kolkata- 700 019 for the last 60 years and the plaintiffs-petitioners have intentionally suppressed the factum of the said conveyance dated January 17,2014. Having considered the facts and circumstances of the case and the submissions made by Mr. Chatterjee and Mr. Dasgupta, learned advocates appearing for the respective parties, I find that although, in the impugned order it has been mentioned by the learned Court below that there is no Schedule mentioned in the application upon which the proposed commission work will be held, but in the application itself the plaintiffs-petitioners have mentioned the schedule of the commission work. Further, although it is a fact that it is the plaintiffs-petitioners, who did not disclose the said deed of conveyance dated January 17,2014 by which they have purchased the flat at 46A, Harish Chatterjee Street, Kolkata- 700 026 and it was only the defendant-opposite party who proved the said deed of conveyance through his own witness, but the fact remains that the plaintiffs-petitioners have filed the ejectment suit, inter alia, on the ground of reasonable requirement of the suit property for their own use and occupation. As has been held by this Court in the case of Amar Singh (supra), it is well settled that while the landlord has filed an eviction suit against the tenant on the ground of reasonable requirement whether under the West Bengal Premises Tenancy Act, 1956 or the present Act of 1997, the plaintiff-landlord is entitled to prove by local inspection that he is not in possession of any reasonable suitable accommodation. For all these reasons, I find substance of the submission made by Mr. Chatterjee on behalf of the plaintiffs-petitioners and the impugned order no. 90 dated December 04, 2015 passed by the learned 2nd Civil Judge (Junior Division) at Alipore in Ejectment Suit No. 14 of 2012 is set aside. However, at the same time it is the plaintiffs-petitioners, who are solely responsible for the present situation resulting in delay in disposal of the ejectment suit and as such they have to pay costs. As submitted by Mr. Chatterjee the plaintiffs-petitioners shall pay costs assessed at Rs.25,000/- (Rupees Twenty Five Thousand only) to the High Court Legal Services Committee within December 12,2015, As suggested by both Mr. Chatterjee and Mr. Dasgupta, a learned Advocate practising in this Court namely, Mr. Ayan Banerjee is appointed as the Advocate Commissioner to visit the first floor of Premises No. 64A, Harish Chatterjee Street, Kolkata- 700 026 and to carry out the commission work as per the schedule annexed to the application under Order XXXIX Rule 7 of the Code of Civil Procedure, 1908 (appearing at page 58 of the revisional application.) Since the next date of hearing of the suit is fixed before the learned Court below on December 14,2015, the learned Advocate Commissioner shall carry out the commission work on December 12,2015 at 2 p.m. as suggested by both Mr. Chatterjee and Mr. Dasgupta appearing for the respective parties. It is made clear that since the date and time of the local inspection by the learned Advocate Commissioner is fixed in presence of the learned counsel appearing for the parties, the learned Advocate Commissioner will not be required to serve any fresh notice of his commission work. The learned Advocate Commissioner shall file his report before the learned Court below on December 14,2015 at 10-30 a.m. The learned Advocate Commissioner shall be paid his remuneration fixed at Rs.20,000/- by the plaintiffs-petitioners. With the above directions, the revisional application being CO No. 4377 of 2015 stands disposed of. Let, a plain copy of this order, duly countersigned by the Assistant Registrar (Court) be made available to the learned advocates of the parties.