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Pannalal Bafna Vs. Kalpana Rani Bhowmick and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 1911 of 1982
Judge
Reported inAIR1983Cal11
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13 - Order 39, Rule 1
AppellantPannalal Bafna
RespondentKalpana Rani Bhowmick and anr.
Appellant AdvocateSaktinath Mukherjee and ;Samarendra Nath Mukherjee, Advs.
Respondent AdvocateA.P. Chatterjee, Standing Counsel, ;A.N. Roy, ;A.K. Ghosal and ;N.G. Das, Advs.
Excerpt:
- .....in respect of the premises from which he has been evicted in due course of law by an ex parte decree passed against him. an application was made under order 9. rule 13 c. p. c. the application was rejected. an appeal was taken. the appeal was dismissed. a revisional application was moved in this court and the learned single judge directed that the appeal against the order passed in order 9, rule 13 c. p. c. must be reheard in respect of the question of limitation only which unfortunately went against the petitioner. the petitioner again moved this court and this court rejected the application. hence the petitioner filed a suit alleging for misrepresentation, non-service of summons and falsity of claim as against the decree-holder in getting the decree exparte against the petitioner......
Judgment:
ORDER

Pradyot Kumar Banerjee, J.

1. This application is at the instance of the tenant for an injunction in respect of the premises from which he has been evicted in due course of law by an ex parte decree passed against him. An application was made under Order 9. Rule 13 C. P. C. The application was rejected. An appeal was taken. The appeal was dismissed. A revisional application was moved in this Court and the learned single Judge directed that the appeal against the order passed in Order 9, Rule 13 C. P. C. must be reheard in respect of the question of limitation only which unfortunately went against the petitioner. The petitioner again moved this Court and this Court rejected the application. Hence the petitioner filed a suit alleging for misrepresentation, non-service of summons and falsity of claim as against the decree-holder in getting the decree exparte against the petitioner. An application was made for an injunction restraining the opposite party landlady from executing the decree as against the plaintiff tenant. No injunction was granted by the first court. On appeal no injunction was granted.

2. On 1-7-1982, the petitioner tenant moved an application challenging an order passed under Order 39. Rule 1, C. P. C. I directed on 1-7-1982, that the matter be listed on 9-7-1982 and the learned Advocate for the petitioner was directed to serve notice on the opposite party in the meantime. But before 9-7-1982. however, the opposite party took possession of the premises in suit through police help. Mr. Mukherjee, on behalf of the petitioner, was present in the premises and stated that he had moved an application and in spite of that possession was taken. When he appeared to mention on 8-7-1982 Mr. A. P. Chatterjee. Staning Counsel, and Mr. A. K. Ghosal appeared and stated that possession was taken and that they were going to re-deliver possession to the petitioner. That was done. Before this application is moved, as this was done, after the possession was taken by the petitioner I directed this would be subject to the result of the application. Before the application was heard I asked Mr. Mukherjee, if the application failed whether he was ready to redeliver the possession to the decree-holder. Mr. Mukherjee after consulting with his client gave an undertaking to this Court that he would redeliver possession to the decree-holder if the application failed. In pursuance of this order Mr. Ghosal and Mr. Mukherjee told me that possession was delivered to the petitioner plaintiff on 13-7-1982 at about 10-30 A. M.

3. After hearing the parties, it appears to me that the plaintiff is not entitled to an injunction. It appears from the fact as is appearing hereinbefore that the petitioner all along knew after the ex parte decree was passed that a decree was hanging on his head. Be that as it may. now a decree was passed. I am not saving whether the decree was a valid decree or not, the Execution was initiated. With police help possession was taken by the landlord. It must be remembered no interim order was granted by me when the application was moved before me on 1-7-1982, in order that I may disposeof the matter making the same parties in possession as before the application was moved on 1-7-1982. Status quo ante was directed to be maintained and that was done. I am of the opinion, in view of the pendency of the suit for setting aside the ex parte decree, some order is to be made by which the position may be maintained in case the plaintiff wins the case and ex parte decree is set aside. In my opinion, the balance of convenience and inconvenience will be secured if I direct the landlord not to assign, let out or in any way deal with the said flat pending the hearing of the suit. I make it clear that the suit premises will not be used for any purpose and may be in possession of the defendant in the suit, that is landlord, in case the suit is decreed in favour of the plaintiff and possession can be redeliver-ed to the plaintiff immediately there-after even if there is an appeal against that order.

4. I direct the suit to be disposed of within a year from today. In this matter Mr. Mukherjee's client must redeliver possession to Mr. Ghosal's client within seven days from today as has been undertaken by his client before the hearing of the application. In case, the undertaking is not complied with liberty is given to Mr. Ghosal to mention the matter with notice to Mr, Mukherjee.

5. I have not issued Rule in view of the fact this was a notice to both the parties and after hearing both the parties the order is passed. Therefore, the order impugned in the appeal is varied to the extent as hereinbefore stated. I make it clear, however, any observation made in the appellate order regarding the falsity of the claim or for that matter service of the notice of the suit will not be projected in any way and will not be binding on the learned Munsif at the time of the hearing of the suit. I make it clear that he can make a finding, if he is of the opinion on the evidence on record about falsity of the claim or non-service of the summons, according to his own judgment not in any way coloured or prejudiced by the appellate court's judgment under Order 39 Rules 1 and 2 or the learned Munsifs judgment. They are all prima facie findings in the interlocutory stage. The application is thus disposed of.

6. There will be no order as to costs.

7. Let a plain copy of this order countersigned by the Assistant Registrar (Court) be given to the learned Advocates for the parties.


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