Smt. Gita Nayek vs Durgapada Karmakar
2022 Latest Caselaw 2308 Cal

Form J(2)    IN THE HIGH COURT AT CALCUTTA
                Civil Appellate Jurisdiction
                          Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                     RVW 85 of 2020
                         With
              CAN 1 of 2012 (Old CAN 7550 of 2012)
                          With
              CAN 2 of 2014 (Old CAN 6093 of 2014)


                     Smt. Gita Nayek
                           -Vs.-
                    Durgapada Karmakar

                            IN
                     FMA 1205 of 2012

              Durga Pada Karmakar & Ors.
                         -Vs.-
                Smt. Gita Nayek & Anr.



For the appellant     :   Mr. Pratip Mukherjee
                          Mr. Puspashish Gupta
                          Mr. Omar Faruk Gazi

For the Respondent    :   Mr. Kushal Chatterjee
                          Mr. Debrup Choudhury



Heard on:            11.04.2022, 13.04.2022 & 21.04.2022


Judgment on: 25.04.2022
                                 2




Bibek Chaudhuri, J.

This is an application for review of the judgment passed by

this Court on 6th December, 2019 in FMA No.1205 of 2012

confirming the judgment and decree passed by the learned Civil

Judge (Junior Division), 4th Court at Sealdah on 27th April, 2009

and 6th May, 2009 respectively in Title Suit No.240 of 1992 by

allowing the prayer of the appellant/opposite party and directing

the respondent/petitioner to quit, vacate and deliver peaceful

possession of the suit property within two months from the date

of delivery of the judgment.

It is alleged by the petitioner that she is a tenant only under

the opposite party No.1 Durgapada Karmakar who purchased

the specific allotted portion of the premises in suit of which the

petitioner is a tenant. There is no relationship of landlord and

tenant between other two opposite parties who purchased

specific demarcated portion of the premises in suit over which

the petitioner had also no right of tenancy and interest.

Therefore, the appellants Nos. 2 and 3 are not the landlords of

the petitioner. This Court while affirming the decree of eviction

passed by the learned trial Judge considered the requirement of

the family members of the appellants Nos. 2 and 3. Thus, the

Court made an apparent error while allowing the appeal. It is

further stated by the petitioner that since there is no relationship

of landlord and tenant between the petitioner and the appellant

Nos. 2 and 3, tenancy was not determined in accordance with

law. This Court also did not consider that no issue as to whether

the plaintiff No.1/appellant had suitable accommodation

elsewhere or not, was framed by the learned trial Judge.

Without consideration and adjudication of such issue no decree

can be passed against the petitioner for eviction on the ground

of reasonable requirement.

It is submitted by Mr. Pratip Mukherjee, learned advocate on

behalf of the petitioner that this Court wrongly held that the

appellants/opposite parties purchased undivided 1/3 rd share each

in the premises in suit with specific demarcation in the plan

annexed to the deeds as plot Nos. A, B and C respectively.

According to Mr. Mukherjee, this Court came to such finding on

the ground that the premises in suit was not partitioned

amongst the purchasers /opposite parties by metes and bounds

either by a deed of partition or by a decree passed by a

competent civil Court. According to Mr. Mukherjee, when the

premises in suit was purchased in three well demarcated and

partitioned plots, the opposite party Nos. 2 and 3 cannot be held

to be the joint landlords of the petitioner. Therefore, the Court

committed an apparent error by holding that all the opposite

parties reasonably require the suit premises.

The opposite parties have filed an affidavit-in-opposition

controverting the allegation made out in the application under

Order 47 Rule 1 of the Code of Civil Procedure filed by the

petitioner.

Mr. Kushal Chatterjee, learned advocate for the opposite

parties submits that the Court passed the judgment in FMA 1205

of 2012 relying on a Division Bench decision of this Court in the

case of Sachindra Nath Seal vs. Sudam Chandra Pal and

Anr. reported in 81 CWN 739. The Court also relied on the

decision of the Hon'ble Supreme Court in the case of Bhairab

Chandra Nandan vs. Ranadhir Chandra Dutta reported in

AIR 1988 SC 396 and came to a reasoned finding that the

opposite parties were able to prove that they are the owners in

respect of the whole premises. As soon as it is found that the

plaintiffs are the owners of the suit premises, there will be no

bar to the Court passing a decree for eviction of the tenant from

the suit premises on the ground of reasonable requirement of

one of the plaintiffs to whom a portion of the suit premises

belongs, the remaining portion belongs to other plaintiffs. In the

aforesaid decision the Division Bench of this Court held that the

plaintiffs are the joint owners in respect of the premises in suit

even where the premises were partitioned amongst them by

metes and bounds and the defendant's tenanted portion falls

within the lots of two of the plaintiffs.

In the instant case, according to Mr. Chatterjee, the

premises in suit were not partitioned by and between the

plaintiffs by a deed of partition. According to the convenience of

the plaintiffs they purchased specific portions of the premises in

suit by three separate deeds of purchase. It is further submitted

by Mr. Chatterjee that the question as to whether the plaintiff

No.1 is the sole landlord of the defendant or all the plaintiffs are

joint landlords is a question of fact which has been decided by

the Court during trial and also in appeal up to the High Court.

The said issue cannot be reagitated in an application under

Order 47 Rule 1 of the Code of Civil Procedure.

Mr. Chatterjee also submits that the scope of review is

absolutely limited. An application for review would be

maintainable upon discovery of a new and important piece of

evidence or where there exists an error apparent on the face of

the record or if the same is necessitated on account of some

mistake or for any other sufficient reason.

It is also submitted by Mr. Chatterjee that the words

"sufficient reason" occurring in Rule 1 is to include a

misconception of fact or law by a Court or even by an advocate.

An application for review may be necessitated by way of

invoking the doctrine "Actus Curiae Neminem Gravavit." In

support of his contention Mr. Chatterjee refers to a decision of

the Hon'ble Supreme Court in the case of Shanti Conductors

Private Limited versus Assam State Electricity Board and

Others reported in (2020) 2 SCC 677.

Having heard the learned advocates for the parties and on

careful perusal of the judgment as well as the law on the issue

of review, this Court most humbly records the observation of the

Hon'ble Supreme Court regarding the scope of review as laid

down in Shanti Conductors (supra) :-

"The scope of review is limited and under the guise of

review, the petitioner cannot be permitted to reagitate and

reargue the questions, which have already been addressed and

decided. The scope of review has been reiterated by this Court

from time to time."

"It is sufficient to refer to the judgment of this Court in

Parsion Devi vs. Sumitri Devi reported in (1997) 8 SCC 751,

wherein in para 9, the following has been laid down -

9. Under Order 47 Rule 1 CPC a judgment may be open to

review inter alia if there is a mistake or an error apparent on the

fact of the record. An error which is not self-evident and has to

be detected by a process of reasoning, can hardly be said to be

an error apparent on the fact of the record justifying the court to

exercise its power of review under Order 47 Rule 1 CPC. In

exercise of the jurisdiction under Order 47 Rule 1 CPC it is not

permissible for an erroneous decision to be "reheard and

corrected". A review petition, it must be remembered has a

limited purpose and cannot be allowed to be "an appeal in

disguise."

In reply thereto Mr. Mukherjee submits that the principle

laid down in Order 47 Rule 1 of the Code of Civil Procedure as

well as in Shanti Conductors (supra) ought to be considered in

the light of the fact that the petitioner did not get any scope to

contest the appeal before this Court.

It is needless to say that the appeal was heard ex parte on

the ground that in spite of repeated chances having been given

to the petitioner, she did not appear before the Court of Appeal

to contest the same.

It is needless to say that the grounds taken by the

petitioner to review the judgment passed by this Court in FMA

1205 of 2012 cannot be said to be error apparent from the face

of the record. The Appellate Court considered the submission

made by the appellant and the relevant law involved in the

appeal and decree is allowed. The question as to whether the

opposite party No.1 is the sole landlord or all the opposite

parties are joint landlords of the petitioner is a question of fact

which was elaborately discussed and decided by the Court of

Appeal.

It will not be out of place to mention that the petitioner

claimed that the opposite party No.1 Durgapada Karmakar is the

sole landlord of the defendant. Even assuming that the opposite

party No.1 is the sole landlord, the petitioner stated

unequivocally in paragraph 8 of her written statement that the

plaintiff No.1 has been residing in the premises of plaintiff No.2

and 3 with them.

In view of such admission, it is clear that the

plaintiff/opposite party No.1 does not possess his purchased plot

in premises in suit and the same is under the possession of the

petitioner. The plaintiff/opposite party No.1 is compelled to stay

in the portion of plaintiff Nos. 2 and 3. Thus, in view of such

clear and unambiguous admission made by the petitioner in her

written statement, the opposite party No.1 is entitled to have a

decree for eviction for his own reasonable requirement.

For the reasons stated above, I do not find any merit in the

instant application and the application under Order 47 Rule 1 of

the Code of Civil Procedure is dismissed on contest, however,

without costs. All connected applications are disposed of.

Photostat certified copy of this judgment, if applied for, be

supplied to the learned advocates for the parties on usual

undertakings.

(Bibek Chaudhuri, J.)