SHEW PRASAD JAISWAL Vs. MIHIR KR SARKAR

JUDGEMENT

(1.) This application is at the instance of the plaintiff and is directed against the order no.101 dated August 4, 2008 passed by the learned Civil Judge (Senior Division), Second Court, Barasat District - North 24 Parganas in Title Suit No.232 of 1991 thereby rejecting an application under Order 1 Rule 10(2) of the Code of Civil Procedure.

(2.) The short fact necessary for the purpose of this application is that the plaintiff/petitioner instituted the Title Suit No.232 of 1991 before the learned Assistant District Judge, Second Court at Barasat [at present, the learned Civil Judge (Senior Division), Second Court at Barasat] for specific performance of contract and mandatory injunction directing the defendant/opposite party to obtain requisite permission / certificate from the concerned authority including the Governor of the State of West Bengal and the Salt Lake Authority for grant of lease in favour of the plaintiff/petitioner of the ground floor and the second floor of the suit premises, as described in the schedule of the plaint. The plaintiff also prayed for an alternative decree of Rs.3,00,000/- and injunction restraining the defendant, his men and agents from interfering with the possession and occupation of the enjoyment of the ground floor and second floor of the premises. The defendant/opposite party got the said land at Salt Lake on lease for a period of 999 years and he entered into an agreement with the plaintiff that the plaintiff would construct a building on the said plot of land on the ground floor and first floor which would be leased out by the defendant to the plaintiff for a terms of 990 years as per terms and agreement executed by an indenture dated January 14, 1987. As per terms, the plaintiff was to construct the ground floor, first floor and second floor of the premises at his own cost and after construction of the first floor, the defendant/opposite party will take charge of the same and go on using and occupying the same on his own right till the construction of the second floor. After construction, it was also decided that the defendant/opposite party would occupy the first floor instead of second floor and the plaintiff would occupy the ground floor and the second floor and the defendant was to take necessary permission from the concerned authority to obtain permission for construction of the second floor. So, the suit was filed. In that suit, the defendant is contesting by filing a written statement denying all the contentions made in the plaint.

(3.) The plaintiff became seriously ill during the pendency of the suit at the stage of peremptory hearing and he could not contact his lawyer and for that reason, the suit was dismissed for default on April 10, 1996.