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2018 DIGILAW 98 (GAU)

Mahuyadey v. Kanak Choudhury and Sons

2018-01-19

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. P.K. Roychoudhury, learned counsel for the petitioners. Also heard Mr. K. Saikia, learned counsel for the respondents. This application under Article 227 of the Constitution of India is filed challenging the order dated 13.6.2017 passed by the learned Munsiff No. 2, Kamrup (M), Guwahati in connection with Misc. (J) Case No. 53/2016 in Title Execution Case No. 42/2015. 2. The petitioners who were tenants of the respondents had filed a title suit in the court of the learned Munsiff No. 2, Kamrup (M) at Guwahati for a decree of permanent injunction restraining/prohibiting the defendants and their men/agents/assignees/successors from evicting/dispossessing the plaintiffs from the tenanted premises as per schedule of the plaint and/or disturbing/obstructing in any way from peaceful occupation and in running the business in the rented premises, not to cause any disturbance/hindrance in regular flow of water/electricity connection and other amenities of ingress and egress to which the plaintiffs were entitled to enjoy being bona fide occupiers of tenanted premises, declaration that notice dated 3.11.2010 is illegal and void etc. 3. The said suit was registered as Title Suit No. 474/2010. 4. The defendants filed a written statement and a counter-claim. 5. The aforesaid counter-claim was filed contending that the suit premises is required for reconstruction/renovation and bona fide requirement as well as on the ground that plaintiffs were defaulters. 6. Vide judgment and decree dated 20.6.2013, suit of the present petitioners was dismissed and the counter-claim was decreed holding that the defendants are entitled to recover vacant possession of the suit premises by evicting the plaintiffs and to recover arrear rent etc. 7. An appeal was preferred by the petitioners in the court of the learned Civil Judge, Kamrup (M), Guwahati where the same was registered as Title Appeal No. 131/2013. 8. By judgment and order dated 11.8.16 the aforesaid appeal was dismissed. 9. Being aggrieved, the petitioners preferred a civil revision petition before this Court which was registered as CRP No. 398/2015. The civil revision petition was disposed of by an order dated 4.2.2016. 10. 8. By judgment and order dated 11.8.16 the aforesaid appeal was dismissed. 9. Being aggrieved, the petitioners preferred a civil revision petition before this Court which was registered as CRP No. 398/2015. The civil revision petition was disposed of by an order dated 4.2.2016. 10. The relevant portion of the order dated 4.2.2017 reads as follows: "(18) Learned counsel for the petitioner further submits that since the underlying object of adducing additional evidence under Order XLI Rule 27 CPC is to enable the Court to pronounce a judgment, hence, the evidence in the form of NJ Cases would have a relevant bearing on the question of determination of the issue No. 4 pertaining to the question of defaulter. I find force in the submission of Mr. Roy Choudhury that the petitioners/appellants were entitled to an answer from the lower Appellate Court as regards the merit of their application filed under Order XLI Rule 27 CPC at the time of disposal of the appeal. The same not having done and the impugned judgment and decree not being in consonance with the requirement of Order XLI Rule 31 CPC, I am of the considered opinion that the same is not sustainable in the eye of law. As such, the impugned judgment and decree passed by the lower Appellate Court is hereby set aside. (19) In view of the observation made hereinbefore, the matter is now remanded back to the learned First Appellate Court for a fresh decision of the Title Appeal by bearing in mind the principles of law enshrined in Order XLI Rule 31 CPC and Order XII Rule 27 CPC. The parties would now appear before the First Appellate Court on 15.02.2016. The learned Court below would make an endeavour to hear and dispose of the appeal expeditiously preferably within a period of 3 (three) months from the date of receipt of the LCR, necessary by holding day to day hearing. Send back the LCR. There would be no order as to costs." 11. The defendants had earlier filed an execution case, which was registered as Title Execution Case No. 42/2015. After passing of the aforesaid order in the civil revision petition, the plaintiffs filed a petition under Section 144 CPC for restoring possession to the plaintiffs in the suit premises. The said petition was registered as Misc. (J) Case No. 53/2016. 12. The defendants had earlier filed an execution case, which was registered as Title Execution Case No. 42/2015. After passing of the aforesaid order in the civil revision petition, the plaintiffs filed a petition under Section 144 CPC for restoring possession to the plaintiffs in the suit premises. The said petition was registered as Misc. (J) Case No. 53/2016. 12. The petitioners had placed on record the proceedings in Misc. (J) Case No. 53/2016 (Annexure-E). 13. A perusal of the same goes to show that on 6.2.2017 an order was passed observing that in view of pendency of Title Appeal No. 131/2013 it will not be proper to proceed with the Misc. (J) Case No. 53/2016. Thereafter, the case was listed on 18.2.17 and 8.5.2017 and finally, on 13.6.17, the learned court below passed the order staying the proceeding in Misc. (J) Case till disposal of the Title Appeal No. 131/2013, which is impugned in this petition. 14. An affidavit-in-opposition was filed by the respondents on 18.11.2017 to which no reply affidavit is filed. 15. In the said affidavit, the respondents have annexed the judgment dated 21.10.17 passed by the learned Civil Judge No. 1, Kamrup (M) in Title Appeal No. 131/2013 whereby the appeal was dismissed. 16. The defendants have also brought on record the order dated 6.10.2015 passed in Title Execution Case No. 42/2015 wherein it is recorded that vacant possession of the suit premises was delivered to the decree holder by removing the articles found in the premises and accordingly, the execution case was disposed of on full satisfaction. 17. A perusal of the application under Section 144 CPC, more particularly paragraph 9 thereof, goes to show that a statement was made by the petitioner No. 1 therein, who is the proprietor of petitioner No. 2, that she was evicted from the shop and thereafter, the opposite party had put a lock in the suit premises and in CRP No. 398/2015, an order of maintenance of status quo was passed in respect of the suit premises. It is also relevant to note that in paragraph 8, however, a contrary statement was made by the petitioner No. 1 wherein she stated that she was partly evicted from the suit premises. 18. It is also relevant to note that in paragraph 8, however, a contrary statement was made by the petitioner No. 1 wherein she stated that she was partly evicted from the suit premises. 18. A perusal of the order dated 4.2.2016 passed in CRP No. 398/2015 goes to show that in the said judgment, there is no reference to the execution of the decree on 6.10.2015. 19. Section 144 CPC comes into play only where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or set aside or modified in any suit instituted for the purpose. In the aforesaid eventualities, the Court which passed the decree or order, shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified. 20. It will be an academic exercise on the part of this Court to go into the question as to whether, having regard to the order passed by this Court in CRP 398/2015, an application under Section 144 CPC would have been maintainable or not and as to whether the impugned order dated 13.6.2017 is sustainable in law, as it is an admitted position, as of today, that the decree passed by the learned trial court in the counter-claim of the defendants had again been reaffirmed by dismissal of the Title Appeal No. 131/2013 vide judgment and order dated 21.10.2017. 21. In that view of the matter, the petition filed under Section 144 CPC has become infructuous. 22. Accordingly, this petition is dismissed as infructuous as, in the present facts and circumstances of the case, no relief is available to the petitioners on the touchstone of Section 144 CPC. No cost.