Gravity Vinimay Private Limited vs Harihar Senapati & Ors
2023 Latest Caselaw 5927 Cal

5.9.2023
    75
Ct. no. 652
    sb
                                    CO 1423 of 2018


                              Gravity Vinimay Private Limited
                                         Vs.
                                 Harihar Senapati & ors.


                      Mr. Arijit Bardhan
                      Mr. Rishav Dutta Gupta          ...for the Petitioner




                      Affidavit of service filed by the petitioner is taken on

              record. Opposite parties are not represented.

                      This is an application under Article 227 of the

              Constitution     of   India   against   the   order   dated   5th

              December, 2017 passed by the learned Civil Judge,

              (Junior Division), 2nd Court, Alipore in Title Suit no. 75 of

              2016.

                      Mr. Arijit Bardhan, learned counsel, on behalf of

              the petitioner contended that the opposite parties herein

              as plaintiffs filed aforesaid suit seeking permanent

              injunction. In the said suit, the plaintiff contended that

              they are tenants in respect of the suit property and

              defendants are trying to dispossess them forcibly without

              taking due course of law.

                      During pendency of the said proceeding, the

              petitioner herein filed an application under Order XII rule

              6 of the Code of Civil Procedure, contending that on the

              basis of admission made by the plaintiffs in the plaint
                    2




that    the     original   tenant,     Janardhan     Senapati

predecessor-in-interest     of   the    plaintiffs   died   on

29.5.2003

, leaving behind his wife, two daughters and

two sons as his legal heirs and the spouse of the

Janardhan Senapati also died, so in view of definition of

tenant under section 2(g) of the West Bengal Premises

Tenancy Act, 1997, defendants are no longer tenants and

are not entitled to get any relief and the suit is liable to be

dismissed under Order XII rule 6 of the Code on

admission.

Learned court below after contested hearing, came

to a finding that the plaintiff has not made any such

admission which can persuade the court to pass a

judgment on admission and accordingly, the court below

rejected the application of the defendant no. 1 under

Order XII rule 6 of the Code dated 12.5.2016 with a cost

of Rs.1000/-.

Being aggrieved by the said order, learned counsel

for the petitioner submits that the court below failed to

consider the cause title as well as paragraphs 4 and 6 of

the plaint and came to an erroneous finding that the

plaintiff of the suit did not make any admission and also

has erred in law in holding that such admission is not

sufficient to pass any decree on admission under Order

XII rule 6 of the Code.

Having considered the facts and circumstances of

the case, let C.O. 1423 of 2018 be disposed of by giving

liberty to the petitioner/defendant no. 1 to file

appropriate application challenging maintainability of the

suit before the court below within a period of seven days

from the date of communication of the order. In the event

of filing such application by the petitioner/defendant no.

1 in the court below, the court below will give opportunity

to plaintiffs to contest said application and will dispose of

such application as preliminary issue on the next date of

hearing i.e. on 6.10.2023, without being influenced by

any observation made herein or by the order impugned.

The cost imposed by the court below while passing

impugned order, is hereby set aside, since such order is

not based on cogent reason.

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.)