Alambee Co-Operative Housing ... vs Rajiv Garg And Ors
2021 Latest Caselaw 85 Cal/2

OD - 13

                               ORDER SHEET
                                GA 1 OF 2021
                               ALP 1 OF 2020
                     IN THE HIGH COURT AT CALCUTTA
                      Ordinary Original Civil Jurisdiction
                               ORIGINAL SIDE

            ALAMBEE CO-OPERATIVE HOUSING SOCITY LIMITED
                               Versus
                        RAJIV GARG AND ORS.


  BEFORE:
  The Hon'ble JUSTICE DEBANGSU BASAK
  Date : 28TH January, 2021


                                                                        Appearance:
                                                          Mr. Saptanshu Basu, Adv.
                                                   Mr. Biswaroop Bhattacharya, Adv.
                                                           Mr. Dipayan Kundu, Adv.
                                                          Mr. Pratik Majumder, Adv.
                                                                 ....for the petitioner

                                                             Mr. Jayjit Ganguly, Adv.
                                                                 ...for the respondent

The Court : By this application, the respondents in a proceeding under

Clause 13 of the Letters Patent, 1865 being ALP No.1 of 2020 seeks modification

of the order dated December 16, 2020.

Learned Senior Advocate appearing in support of the application submits

that, on December 16, 2020 when, the Court was invited to record that the

defendants in Ejectment Suit No.361 of 2010 were not pressing all pending

applications an application under Order VIII Rule 9 of the Code of Civil

Procedure, 1908 was pending. Its hearing was concluded and judgment reserved.

The Ejectment Suit is inter alia on the basis of reasonable requirement. In the

application, under Order VIII Rule 9 of the Code of Civil Procedure, 1908, only

one paragraph being Paragraph-7 thereof should be allowed to be incorporated as

an additional written statement in the suit. He submits that, in the event, the

same is not allowed the defendants in the suit will be seriously prejudiced. The

defendants did not understand the scope and effect of giving up the pending

applications.

Learned Advocate appearing for the plaintiff in Ejectment Suit No.361 of

2010 submits that, in the event, the defendants restrict their prayer to

Paragraph-7 of the proposed Additional Written Statement in the application

under Order VIII Rule 9 of the Code of Civil Procedure, 1908 to be treated as the

additional written statement and do not ask for any other indulgence including

recording evidence with regard thereto then, the plaintiff will not object thereto.

Learned Senior Advocate for the defendants submits that the defendants are

agreeable thereto. In such circumstances, for the ends of justice, the order dated

December 16, 2020 in ALP No.1 of 2020 is modified by permitting Paragraph-7 of

the proposed additional written statement to be treated as an additional written

statement in the Ejectment Suit No. 361 of 2010.

Paragraph-7 of the proposed additional written statement is as follows:

"7. The defendants state that the need of the plaintiff as set out in the

plaint is not genuine and bogus and that had the plaintiff any genuine

need for accommodation and requirement to construct building's the

plaintiff would not have entered into such an agreement for sale of the

suit property on 21st August 2012 with Joita Estates Pvt. Ltd. In fact by

entering into an agreement with thi4rd party Joita Estates Pvt. Ltd. In

fact, the plaintiff has lost the locus to maintain and carry on with the

suit. The defendants further state that the truth of the such statement

that the plaintiff has entered into an agreement for sale and has

received Rs.11,51,000/- as advance money against the sale of the suit

property with Joita Estates Pvt. Ltd. will be reflected from the Audit

Report along with balance Sheet and AGM dated 28.06.2015. Name of

Joita Estate does not appear anywhere in the written statement.

Copy of the said sale Agreement is enclosed herewith and marked as

Annexure P and Audit Report and balance Sheet collectively marked as

Annexure Q."

The order dated December 16, 2020 required a disposal of the suit within

four months from the date of such order. A period in excess of a month has

elapsed from such order. The Court is informed that, the evidence of the parties

is closed and the suit is fixed for argument on February 2, 2021.

In such circumstances, in order to allow the learned Court to deliver the

judgement within the time frame fixed by the order dated December 16, 2020, it

would be appropriate to direct that, the parties will commence their argument on

February 2, 2021 and will continue the same until its conclusion or until the

close of the Court hours whichever is earlier.

The next date for argument will be the next working date of the Court and

such argument will commence at 10:45 A.M. and will continue till its conclusion

or till the closer of the working hours of the Court. It will continue likewise on

every subsequent working days of the Court till the conclusion of the hearing.

I.A. GA No.1 of 2021 is disposed of accordingly.

(DEBANGSU BASAK, J.)

S.De