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2016 DIGILAW 760 (CAL)

Santanu Biswas v. Rekha Behera

2016-09-28

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This second appeal is directed against the judgment and decree dated 22nd December, 2011 passed by the Learned District Judge, Darjeeling in O.C. Appeal No. 12 of 2005 affirming the judgment and decree dated 25th November, 2005 passed by the Learned Civil Judge (Senior Division), Darjeeling in O.C. Suit No. 19 of 1993, at the instance of the defendants/appellants. 2. This appeal will be heard on the following substantial questions of law. (i) Whether the principle of natural justice was violated in this case by not affording an opportunity to the defendants either to cross-examine the plaintiffs’ witnesses or to examine the defendants’ own witnesses or not? (ii) Whether the defendants were deprived of contesting the said suit effectively as no lawyer of the local bar accepted the brief on behalf of the defendants due to a resolution adopted by the local Bar Association that no lawyer of Darjeeling Bar Association will appear in a case where any lawyer of the local bar and or the members of their family are involved or not? 3. The parties are closely related to each other. The defendant no. 1 is the stepbrother of the plaintiff no. 1. The defendant no. 2 is the stepsister of the plaintiff no. 1. The plaintiff no. 2 is the subsequent purchaser of the suit premises from the plaintiff no. 1. Admittedly, the plaintiff no. 1 was the owner of the property. She got this property by allotment in the partition effected between the co-sharers. The defendants were inducted in the suit premises by the plaintiff no. 1. The plaintiff no. 1 claims that the defendants were inducted as a licensee under her on payment of licence fees of Rs. 800/- per month. 4. Since the defendants did not vacate the suit premises after revocation of the licence, the instant suit was filed. The defendants appeared in the said suit and contested the same by filing written statement taking the plea that they are the tenants under the plaintiff no. 1 in respect of the suit premises. Thus, the only issue which was involved in the suit, was as to whether the defendants are tenants under the plaintiff no.1 or they are licensees under the plaintiff no. 1. 5. The suit for eviction of the defendant on revocation of her licence was filed by the plaintiff no. 1 in 1993. 1 in respect of the suit premises. Thus, the only issue which was involved in the suit, was as to whether the defendants are tenants under the plaintiff no.1 or they are licensees under the plaintiff no. 1. 5. The suit for eviction of the defendant on revocation of her licence was filed by the plaintiff no. 1 in 1993. Repeated adjournments were taken by the defendants/appellants. Even on the day when a date was fixed for cross-examination of the witness of the plaintiff being P.W.1, the defendants prayed for an adjournment. Prayer for adjournment was rejected. The plaintiffs were directed to cross-examine the plaintiffs’ witnesses. They did not do so. As a result, the evidence of the plaintiffs’ witnesses was closed. Even the defendants did not examine their witnesses in the suit. Ultimately, the suit was heard ex-parte against the defendants as they did not participate in the trial of the suit after the closer of the plaintiffs’ evidence. The said suit was decreed. The plaintiffs got a decree for recovery of khas possession of the suit property from the defendants. A decree in preliminary form for mesne profit @ Rs. 800/- per month was also passed against the defendants from 1st April, 1993 till the date of delivery of the suit property to the plaintiffs, with a rider that final decree as regards mesne profit will be made after an enquiry to be made after recovery of possession of the suit premises by the plaintiffs. 6. The defendants felt aggrieved. They challenge the said judgment and decree passed by the learned Trial Judge before the learned First Appellate Court. The learned First Appellate Court affirmed the judgment and decree passed by the learned Trial Judge. Both the Courts below concurrently held that the defendants are licensees under the plaintiffs. Both the Courts below held that since the defendants failed to deliver the vacant possession of the suit premises even after revocation of licence, they are liable to be evicted from the suit premises. 7. Challenging the said judgment and decree of the learned First Appellate Court, the instant second appeal has been filed. 8. Mr. Both the Courts below held that since the defendants failed to deliver the vacant possession of the suit premises even after revocation of licence, they are liable to be evicted from the suit premises. 7. Challenging the said judgment and decree of the learned First Appellate Court, the instant second appeal has been filed. 8. Mr. Chatterjee, learned advocate appearing for the appellants submits that because of a resolution adopted by the Bar Association, Darjeeling that no lawyer will accept the brief against a lawyer being the member of the local Bar Association, where either the lawyer or any member of the lawyer’s family is involved. No lawyer of the Darjeeling Bar Association accepted brief on behalf of the defendants. 9. He further submits that even the lawyer who initially accepted the brief refused to conduct the case on behalf of the defendants. As a result, they could not contest the said suit effectively. 10. Mr. Chatterjee further submits that even after rejection of their application for adjournment, sufficient time was not given to his client for cross-examining the plaintiffs’ witnesses. He further submits that even reasonable opportunity was not given to the defendants for examining their own witnesses. 11. Under such circumstances, the defendants, according to Mr. Chatterjee could not contest the said suit effective. 12. Mr. Chatterjee further submits that even the interlocutory orders of refusal to grant adjournment and/or not permitting his client either to cross-examine the plaintiffs’ witnesses or to examine their own witness were challenged by the defendants in the first appeal, but the learned First Appellate Court, without considering the legality of those orders, disposed of the appeal by affirming the judgment and decree of the learned Trial Court on merit. 13. Mr. Chatterjee thus, submits that the principle of natural justice was grossly violated in the facts of the present case. He thus, invited us to set aside the judgment and decree passed by the learned court below. 14. Mr. Quasimuddin, learned advocate appearing for the plaintiffs/respondents submits that the defendants have no case even on merit which can be demonstrated before this Court in course of hearing of the appeal. He thus, invited us to set aside the judgment and decree passed by the learned court below. 14. Mr. Quasimuddin, learned advocate appearing for the plaintiffs/respondents submits that the defendants have no case even on merit which can be demonstrated before this Court in course of hearing of the appeal. But considering the time which may be consumed for disposal of the appeal, he submits that it will be better if the impugned judgments and decrees are set aside and the suit is remanded back to the learned Trial Court for fresh hearing, after giving the plaintiffs a reasonable opportunity to cross-examine the plaintiffs’ witnesses and/or to lead his own evidence in the suit. 15. We think that this is a fair proposal as we find from the record that the lawyer of the local bar association denied to accept the brief on behalf of the defendants/appellants to conduct their defence in the said suit. 16. We thus, feel that justice will be sub-served if we set aside the judgment and decree of the learned Courts below and send the suit back on remand to the learned Trial Judge by giving an opportunity to the defendants to cross-examine the plaintiffs’ witnesses and also to examine their own witness. 17. We thus, set aside the judgments and decrees of the Courts below. The suit is sent back on remand for disposal of the said suit afresh after giving a reasonable opportunity to cross-examine the plaintiff’s witness and/or to give his own evidence so that the suit can be decided on merit. 18. Having regard to the fact that the defendants are not getting proper assistance from any competent lawyer at Darjeeling, we feel that for fair trial of the suit, the suit should be transferred to any other court so that both the parties can get sufficient opportunity to proceed with the suit and/or contest the same. 19. Accordingly, we transfer the suit being O.C. Suit No. 19 of 1993 from the court of the learned Civil Judge, Senior Division, Darjeeling to the court of the learned District Judge at Jalpaiguri and the learned Trial Judge at Jalpaiguri is requested to transfer the same to any court of Civil Judge (Senior Division) at Jalpaiguri. 20. 19. Accordingly, we transfer the suit being O.C. Suit No. 19 of 1993 from the court of the learned Civil Judge, Senior Division, Darjeeling to the court of the learned District Judge at Jalpaiguri and the learned Trial Judge at Jalpaiguri is requested to transfer the same to any court of Civil Judge (Senior Division) at Jalpaiguri. 20. It is made clear that no unnecessary adjournment will be given to any of the parties and the learned Trial Judge will make all endeavour to dispose of the suit within three months from the date of receipt of the records relating to the said title suit positively and if necessary by taking day to day hearing of the suit. 21. The impugned judgment and decree are thus, set aside subject to payment of cost of Rs. 1,00,000/- (Rupees one lac) to the plaintiff/respondent. 22. Mr. Chatterjee informs this Court that a sum of Rs. 5,00,000/- (Rupees Five Lacs) has already deposited by his client in the execution proceeding as a condition for fixing a date for hearing of his client’s application under Section 47 of the Code of Civil Procedure. He thus, suggests that the cost amount be withdrawn by the plaintiff/respondent out of such deposit and the rest of such deposit may be returned to his client. 23. We accept such suggestion and permits the plaintiff/respondent no. 2 to withdraw a sum of Rs. 1,00,000/- being the cost amount from the deposit of Rs. 5,00,000/- from the executing court and return the balance amount to the defendant/appellant. 24. It is also made clear that all arrear occupational charges upto the month of October, 2016 should be deposited by the defendant/appellant in the Trial Court as a condition of the setting aside the decree. 25. It is thus, made clear that in the event such arrear occupational charges is not deposited by the defendant/appellant by 15th of November, 2016, the order passed hereinabove for setting aside the judgment and decree of the courts below will stand recalled and in the impugned decree will stand revived. 26. Both the appeal and application are thus, disposed of.