Kesharshyam Construction (P) Ltd vs Siddheswar Banerjee & Ors
2023 Latest Caselaw 5101 Cal

17.8.2023 12,13 Ct. no. 652 sb C.O. 3049 of 2018

Kesharshyam Construction (P) Ltd.

Vs.

Siddheswar Banerjee & Ors.

With C.O. 3050 of 2018

Santosh Banerjee Vs.

Siddheswar Banerjee & Ors.

                   Mr. Shuvasish Sengupta
                   Mr. Balarko Sen
                   Mr. Sourath Dutt
                   Ms. Subhra Das               ...for the petitioner


                   Mr. Aniruddha Chatterjee
                   Mr. Abirlal Chakraborty
                   Ms. Madhuchanda Singha
                                           ...for the Opposite parties

Being aggrieved by the order dated 4th August,

2018 passed by learned Civil Judge, Junior Division, 2nd

Additional Court at Alipore in Misc. Case no. 13 of 2015

arising out of Ejectment Execution Case no. 1 of 2015, in

connection with compromise decree passed in Ejectment

Suit no. 40 of 2006, the present application under Article

227 of the Constitution of India has been preferred

separately by plaintiff and defendant/tenant of said

Ejectment Suit no. 40 of 2006. Plaintiff/landlord of

Ejectment Suit no. 40 of 2006 namely M/s. Kesharshyam

Construction preferred C.O. 3049 of 2018 and

defendant/tenant of aforesaid Ejectment Suit namely

Santosh Banerjee preferred C.O. 3050 of 2018 against the

self-same order.

The petitioners' case is that in or about 2006, the

aforesaid landlord filed suit for eviction of the opposite

party no. 2 of C.O. 3049 of 2018 and petitioner of C.O.

3050 of 2018, being Ejectment Suit no. 40 of 2006.

During pendency of the said suit, aforesaid parties to the

suit made an amicable settlement and in pursuant to that

settlement, the suit was disposed of under Order XXIII

rule 3 of the Code of Civil Procedure and the suit was

decreed on compromise in terms of the compromise

petition filed by the parties to the said suit. Subsequently,

the landlord i.e. petitioner of C.O. 3049 of 2018 and

opposite party no. 2 of C.O. 3050 of 2018 as decree-

holder filed execution case before the court below being

aforesaid Ejectment Execution case no. 1 of 2015. In or

about 2015, the opposite party no. 1 herein in both the

applications namely Siddheswar Banerjee filed an

application under Order XXI rules 97, 98, 99, 100 and

101 read with Section 151 of the Code of Civil Procedure

being Misc. case no. 13 of 2015 arising out of aforesaid

Ejectment Execution case no. 1 of 2015. In the said Misc.

case, the aforesaid opposite party no. 1 challenged the

legality and validity of the decree and contended that the

decree passed in Ejectment suit no. 40 of 2006 is not

maintainable since the decretal property is under the

possession and occupation of the opposite party no. 1

herein with the status of joint tenant. He further

contended in that Misc. case as petitioner that the

petitioner being partner of the business of M/s. Café has

been possessing and enjoying the decretal property with

the status of joint tenant under the landlord who is

petitioner of C.O. 3049 of 2018 and opposite party no. 2

in C.O. 3050 of 2018 and accordingly, the decree passed

by the court below on 19.1.2015 has no enforceability

and is not binding upon the petitioner, since it is a

fraudulent and collusive decree.

During pendency of the said Misc. case, the

opposite party no. 1 herein filed an application under

Order XI rule 14 read with Section 151 of the Code

praying for direction upon the petitioners of C.O. 3049 of

2018 and C.O. 3050 of 2018 to allow opposite party no. 1

herein to inspect the counter-part of the rent receipt and

also rent receipts issued since 1983 till 2001, since the

plaintiff/landlord alleged in the plaint that tenant is

defaulter in payment of rent since April, 2001. Be it

mentioned that opposite party no. 1 herein contended in

his application that landlord became owner of suit

property by purchase in the year 1983, when he sent

letter of attornment to both tenants.

The petitioners herein filed respective written

objections to the said application under Order XI rule 14

of the Code and the learned court below after hearing

both the parties, passed the order impugned wherein the

court below directed the petitioners of both the revisional

applications to produce the counter part of the rent

receipts and rent receipts issued by it since 1983 and

fixed the matter on 8th September, 2018 for production of

documents.

Learned counsel for the petitioner submits that

learned court below has exceeded its jurisdiction in

passing the order impugned and has caused grave

irregularity in passing the said order which suffers from

perversity. In fact, learned court below has no jurisdiction

in allowing the application and to direct the petitioners to

produce the counter part of the rent receipt or the rent

receipts issued by it since 1983. Learned court below

failed to appreciate that the burden of proof of the

allegation made in the Misc. case is upon the opposite

party no. 1 and not upon the petitioners herein. He

strenuously argued that the power under Order XI rule

14 can be exercised only where the documents are in

possession of any of the parties. Here, the petitioners

have specifically denied that the petitioners are not in

possession of the counter part of the rent receipt or the

rent receipt issued by it since 1983 and as such, the

court below should not have directed the petitioners to

produce those documents. Accordingly, the petitioners

have prayed for setting aside the impugned order by filing

aforesaid two separate applications. In this context, they

relied upon a judgment passed by a coordinate Bench of

this court in India Foils Ltd. Vs. The 5th Industrial

Tribunal, West Bengal and Others. reported in AIR

1972 Cal 308.

Learned counsel for the opposite party no. 1 of

both the applications submits that the

petitioner/plaintiff/decree-holder in his objection against

the application under Order VII rule 14 admitted that the

documents relied on by the plaintiff in the said suit, was

under the custody of Kunjbehari Tibrewala, Ex Director of

the company who passed away on 31.12.2010 and said

Kunjbehari Tibrewala used to keep all original documents

in his custody and after his death, the present director of

the company could not be able to trace out old

documents in spite of their best effort. Furthermore, due

to shifting of office of company at a different address, it is

not possible for the landlord to produce the counter part

of rent receipts from 1983 onwards. The petitioner of C.O.

3050 of 2018 in his objection has only stated that since

long period has already been passed and the petitioner

became aged and suffering from various old age ailments

could not trace old documents in spite of his best effort

and as such it is not possible for him to produce rent

receipt since 1983.

It is further submitted that Order XI rule 14

prescribes two things that the documents must be

relevant for the adjudication of the real dispute between

the parties and the petitioners herein were in possession

or power of those documents. Since the petitioners herein

have admitted in their objection that concerned

documents were in their possession so the court below

has committed no mistake in directing the petitioners

herein of both C.O. 3049 of 2018 and C.O. 3050 of 2018

to produce those documents and there is no perversity in

finding that those documents are relevant for the purpose

of adjudication of the present dispute. In such view of the

matter, opposite party no. 1 of both the applications

prayed that the order impugned does not call for

interference.

I have considered the submissions made by both

the parties. In view of the wordings of order XI, Rule 14

and also ratio laid down in India Foils Ltd. (supra), the

position of law is very clear that the order XI rule 14 can

be made applicable only if two pre-conditions as

contemplated by Rule 14 are satisfied that the documents

must be in possession or power of the party against

whom the order is made and secondly, the documents

must relate to the matter in question in the dispute. In

the order impugned, the court below has specifically

observed that the question raised by opposite party no. 1

herein regarding his right and interest over the decretal

property and whether or not that was a joint tenancy of

partnership firm and therefore, the rent receipts are the

only documents which are to be looked into. He further

held that as per provision under Order XI rule 14, it is

deemed necessary to bring those rent receipts in the

record.

The petitioners herein in their written objections

have nowhere denied that those counterfoil rent receipts

or rent receipts were never in their possession but they

have only submitted that since a long period has already

been passed and/or since Ex director who used to keep

all original documents in his custody, passed away on

31.12.2010 and/or due to shifting of office room and/or

due to old age, they could not able to trace out old

documents and it is not possible for either of them to

produce the documents as sought for.

In such view of the matter, since it is not the case

of either of the petitioners that the counter part of the

rent receipts or rent receipts from 1983 and onwards

were never in their possession nor they have denied

anywhere about existence of such documents at any

point of time, I find no perversity in the order impugned

nor it can be said that court below has exceeded his

jurisdiction in passing the order impugned, which calls

for interference by this court while exercising supervisory

jurisdiction under Article 227 of the Constitution of India.

In view of above, the prayer made by the petitioner

is lacking merit. C.O. 3049 of 2018 and C.O. 3050 of

2018 are accordingly, dismissed.

Urgent photostat certified copy of this order, if

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

requisite formalities.

(Ajoy Kumar Mukherjee, J.)