Sri Shyamal Karmakar vs Sri Debasish Bose
2022 Latest Caselaw 8458 Cal

S/L 3-4
19.12.2022

Court No.652 SD CO 509 of 2017 With CO 511 of 2017

Sri Shyamal Karmakar Vs.

Sri Debasish Bose

Mrs. Shohini Chakrabarty Mr. Arijit Sarkar ... for the Petitioner.

Mr. Surojit Chakraborty Mr. Sourabh Sen Mr. Subhojoy Sen Ms. Adrisnata Chakraborty ... for the Opposite Party.

Since issues involved in both the revisional

applications are connected with each other arising in the

same suit between the parties, the same are disposed of by

this common order.

Being aggrieved by the order dated May 26, 2016

passed by the learned Civil Judge (Junior Division), 5th

Court, Alipore, South 24-Parganas in Ejectment Suit No.10

of 2007, the revisional application being CO 511 of 2017 has

been preferred.

By the impugned order, the learned court below was

pleased to reject the defendant's application under Section

151 of the Code of Civil Procedure praying for recalling of the

order dated 18.7.2010 by which the Court below disposed of

defendant's application under Section 7(2) of the West

Bengal Premises Tenancy Act, 1997 (hereinafter called as

'the Act of 1997') with the direction to deposit arrear rent of

Rs.25,960/- by 19.8.2010.

The revisional application being CO 509 of 2017

relates to allowing plaintiff's prayer for striking out defence

under Section 7(3) of the Act of 1997 in view of the fact that

in terms of the aforesaid order dated 18.7.2010 the

defendant/petitioner has not deposited Rs.25,960/- by

19.8.2010.

The petitioner has contended that the opposite party

herein filed the Ejectment Suit No.10 of 2007 against the

petitioner herein for recovery of Khas possession on the

ground of reasonable requirement and defaulter in payment

of rent. The petitioner being the defendant contesting the

said suit by filing written statement and also filed two

applications under Section 7(1) and 7(2) of the Act of 1997.

The petitioner/defendant submits that he filed all old

rent receipts, challans of rent controller and civil deposit

challan before the learned trial court. The opposite party did

not file any written objection against the defendant's

application under Section 7(1) and 7(2) of the Act of 1997.

Petitioner further submits that in spite of payment of

rent for each and ever month, the learned trial court by order

dated July 18, 2010 was pleased to ascertain that the

petitioner is defaulter in payment of rents since October

1999 to July 2009 and directed the petitioner to deposit a

sum of Rs.25,960/- including interest thereon without giving

any opportunity to the petitioner to clarify his stand in

respect of the documents he filed showing payments of all

the rents, for aforesaid 118 months.

On September 2010 the opposite party filed one

application under Section 7(3) of the Act of 1997 for non-

payment of aforesaid amount which was allowed by court

below against which the revisional application being CO 509

of 2017 has been preferred.

Finding no other alternative, the petitioner

herein/defendant/tenant initiated a proceeding under Order

47 Rule 1 of the Code of Civil Procedure for review of the

order dated July 18, 2010 passed by the learned Civil Judge

(Junior Division), 5th Court, Alipore. The opposite party

contested the said proceeding by filing written objection and

after contested hearing, on April 30, 2011 the court below

rejected the application under Order 47 Rule 1 of the Code of

Civil Procedure on the ground that the said application has

not been filed in compliance to Rule 3 of Order 47 and also

on the ground that the said order dated 18.7.2010 was

passed with sufficient reasons and there is no apparent

mistake or error apparent on the face of the order and no

new evidence in favour of the defendant/petitioner has come

before the court which can justify the prayer for review.

Being aggrieved by that order, the

defendant/petitioner preferred miscellaneous appeal before

the learned Additional District Judge, 6th Court at Alipore

but the said miscellaneous appeal was also dismissed upon

hearing on February 26, 2013. Being aggrieved by the said

order of dismissal by the first appellate court, the

defendant/petitioner preferred application under Article 227

of the Constitution of India before this Court being CO 1853

of 2013 and this Court without going into the merits of the

case dismissed the said revisional application.

After the aforesaid dismissal order by this Court, the

petitioner/defendant filed an application under Section 151

of the CPC for recalling of the order dated 18.7.2010 and

come to a conclusion after considering all the papers lying

with the record that the defendant is not a defaulter in

payment of rent. Learned court below had taken up the said

application under Section 151 and by the impugned order

dated 26.5.2016 the application under Section 151 for

recalling the order dated 18.7.2010 was rejected on contest.

Mrs. Shohini Chakrabarty, learned counsel appearing

on behalf of the petitioner, submits that the court below

ought to have liberally considered the petitioner's

application considering the facts and circumstances of the

case and he has committed a gross miscarriage of justice in

adopting a hyper technical approach in passing the

impugned order and rejected the defendant/petitioner's

petition without entering in its merits. The trial court has

committed a jurisdictional error in not recalling the same on

the ground of an error apparent on the face of the record.

The court below has also committed gross miscarriage of

justice in rejecting petitioner's application holding that a

court cannot sit over its own order without considering the

well-settled principle of law that in appropriate cases the

court can exercise its inherent power to recall its own

previous order.

Mr. Sourabh Sen, learned counsel appearing on behalf

of the opposite party, submits that the issue involved in the

present case has already been disposed of by the trial court

and also by the First Appellate Court as well as by this

Hon'ble High Court and accordingly, it is barred by

constructive res judicata and the same issue cannot be raised

in the same proceeding which has been disposed of finally,

with the observation that there is no apparent mistake or

error on the face of the order.

In this context, he relied upon two Supreme Court

judgments in the case of Satyadhyan Ghosal and Ors. vs.

Deorajin Debi and Ors. reported in AIR 1960 SC 941 and in

the case of Indu Bhusan Jana vs. The Union of India (UOI)

and Ors. reported in 2009 (1) CHN 27.

Having considered the submissions made on behalf of

the learned counsel appearing on behalf of the parties and

the materials available in the record, it appears to me that

the defendant/petitioner's specific case is that he is not a

defaulter for a single month during the period October 1999

to July 2009 and he has deposited all his documents in

support of the payment of rent for the said period. The court

below ignoring and overlooking all those documents in

support of payment has wrongly calculated the arrear rent

and directed the defendant/petitioner to pay a sum of

Rs.25,960/- as arrear rent though in fact there is no such

arrear of rent which is to be paid by the defendant/petitioner

and as a corollary wrongly allowed plaintiff's application

under Section 7(3) of the Act of 1997..

Learned counsel appearing on behalf of the opposite

party has also not raised question about such payment of

rent by the petitioner/defendant but his contention is that

once court has disposed of the issue regarding arrear of rent

with the observation that Rs.25,960/- is lying due, the

defendant/petitioner cannot raise this point again as it is

barred by res judicata.

Considering the facts and circumstances of the case,

both the impugned order dated 26.5.2016 and 15.12.2016 are

set aside. The trial court is directed to reconsider the

defendant/petitioner's recalling application under Section

151 of the Code dated 26.5.2016 afresh, in the light of the

documents allegedly submitted by the petitioner in support

of payments of rent for 118 months, i.e., from October 1999

to July 2009 within a period of three months from the date

of communication of the order.

If the learned trial court finds that the deposit of rent

has been correctly made by the defendant/petitioner for the

aforesaid 118 months, he will accordingly dispose of Section

7(2) application afresh and will proceed with the suit, but if

it is found that there is any outstanding amount in

connection with payment of arrear of rent, for the said

period which the petitioner has not deposited in accordance

with law then the order impugned in both the cases that is

order dated December 15, 2016 and May 26, 2016 shall

revive.

With these observations, CO 509 of 2017 and CO 511

of 2017 are disposed of.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)