Sanat Kumar Pal vs Life Insurance Corporation Of ...
2021 Latest Caselaw 561 Cal

27.01.2021 (S/L-01) Ct.-18 (Susanta)

(Via Video Conference)

C.O. 2287 of 2019

Radio Voice, represented through Sanat Kumar Pal,

-Vs-

Life Insurance Corporation of India

Mr. Prosenjit Mukherjee, ...... For the Petitioner.

Mr. Kushal Chatterjee, Mr. Mohanlal Banerjee, Mr. Saptarshi Kumar Mal, .... For the Opposite Party.

The revisional application under Article 227

of the Constitution of India is directed against

the judgment and order dated April 17, 2019

passed by the learned Judge 5th Bench, City Civil

Court at Calcutta in Miscellaneous Appeal No. 23

of 2009.

The petitioner is a proprietorship firm. The

present proprietor is claiming the tenancy of the

suit shop room being the legal heir of the original

proprietor.

The petitioner has suffered an order of

eviction dated March 31, 2009 passed by the

Estate Officer in Case No. EO/274/0603 under

Section 5(1) of the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 (hereinafter

referred to as the "said Act" in short).

The Estate Officer in the said order has also

passed an order of damages under Section 7 of

the said Act.

The petitioner aggrieved by the said order of

eviction preferred an appeal under Section 9 of

the said Act before the City Civil Court at

Calcutta.

The appeal Court below by the impugned

judgment and order has dismissed the said

appeal.

Mr. Prosenjit Mukherjee learned advocate

appearing on behalf of the petitioner submits

that the opposite party prior to the present

proceeding had initiated another proceeding for

eviction of the petitioner from the suit shop room

but withdrew the same without the leave of the

Estate Officer to file a fresh proceeding on the

self-same cause of action and the present

proceeding being on the self-same cause of action

is barred by law.

He further submits that in the earlier

proceeding under Section 7(1) of the said Act

issue regarding payment of rent since has been

decided, the present proceeding for realization of

arrear rent is barred by the principle of the res

judicata, that apart some portion of arrear rent is

not recoverable being barred by limitation.

Mr. Mukherjee places reliance on the

decision of the learned Single Judge of this Court

in the case of Shalimar Paints Ltd. -Vs- The

Board of Trustees for the Port of Kolkata

reported in 2016(1) CLJ (Cal) 441 to contend

that the opposite party is entitled only to realize

the amount which is not barred by law of

limitation.

Mr. Kushal Chatterjee learned advocate

appearing on behalf of the opposite party

responding to the said argument of Mr.

Mukherjee submits that the earlier eviction

proceeding was withdrawn after obtaining leave

to file afresh on the self-same cause of action.

He further submits that the earlier

proceeding under Section 7(1) of the said Act was

initiated by the petitioner and the same was

dismissed by the Estate Officer. No issue of the

present proceeding was directly or indirectly an

issue in the said proceeding as such there is no

question of this proceeding being barred by the

principle of res judicata.

Mr. Chatterjee submits that the opposite

party issued a notice under Section 7(3) of the

said Act for damages together with the interest

and the Estate Officer passed an award of

damages, therefore, the decision relied on by Mr.

Mukeherjee has got no manner of application in

the facts and circumstances of the present case.

Heard learned counsel for the parties,

perused the materials on record.

The opposite party on earlier occasion

initiated a proceeding for eviction being Case No.

EO/148/0995. The Estate Officer on scrutiny of

records found that by the order dated June 29,

2000 passed in the said earlier eviction

proceeding allowed the opposite party to

withdraw the said proceeding with a liberty to file

afresh on the self-same cause of action,

therefore, the argument of Mr. Mukherjee, on

this score fails.

The petitioner had filed an application under

Section 7(1) of the said Act for a direction upon

the opposite party to accept the current monthly

rent which was registered before the Estate

Officer being Case No. EO/63/0802/MISC and

was dismissed by the order dated September 29,

2003.

On perusal of the said order it appears that

the issue involved in the present proceeding is

not at all directly and substantially an issue in

the said earlier proceeding.

It is rightly pointed out by Mr. Chatterjee

that the decision relied on by Mr. Mukherjee has

no manner of application in the facts and

circumstances of the present case inasmuch as

in the present proceeding the opposite party after

issuing a notice under Section 7(3) of the said

Act prayed for damages.

The Estate Officer considering the location of

the suit shop room has fixed the said damages @

Rs. 20/- per Sqft. per month from June 2003 till

it is vacated by the petitioner. Therefore, the

question that the arrear rent is barred by

limitation has no relevance in deciding the rate of

damages and the period for which it is payable.

In view of the discussion made above the

revisional application fails.

C.O 2287 of 2019 is dismissed.

There shall be no order as to costs.

Urgent photostat certified copy of this order,

if applied for, be supplied to the parties subject

to compliance with all requisite formalities.

(Biswajit Basu, J.)