UPENDRA NATH GANGULY Vs. SMT. JAYANTI MUKHERJEE

JUDGEMENT

(1.) This a landlord's appeal against an order dated Sept. 13, 1979, passed in Misc. Case No. 1175/79 arising out of Ejectment Suit no. 1568/72 of the City Civil Court at Calcutta.

(2.) The basic facts leading to the impugned order are not very much in dispute. The plaintiff-appellant instituted the aforesaid ejectment suit against the defendant-respondent for eviction and obtained an ex parte decree on Nov. 5, 1973. Thereafter, the plaintiff by execution of the decree recovered possession of the suit premises by breaking open the lock. The articles belonging to the defendant-respondent were kept in the custody of the plaintiff-appellant. The defendant, however, filed are, application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree which was registered as Misc. Case No. 239/74. This miscellaneous case was disposed of by an order dated July 19, 1975. By consent of the parties and on payment of costs the Miscellaneous Case was allowed and the suit was restored to its original file and number after setting aside the ex parte decree dated Nov. 5, 1973. Thereafter, the defendant-tenant filed an application under section 144 of the Code for restitution of possession. This application was registered as Misc. Case No. 550/77. The plaintiff-appellant also filed an application under section 151 of the Code for setting aside the consent order allowing the Miscellaneous Case under Order 9, Rule 13 of the Code. Both these matters came to be heard on May 27, 1978. It appears from the order of that date that neither party pressed their respective petitions and filed a joint application in that behalf. On the basis of the joint application the Miscellaneous Case as also the petition under section 151 of the Code were dismissed for non-prosecution. The joint petition indicates that the parties agreed that the suit be posted for final hearing at an early date. Thereafter, another application under section 144 of the Code was filed by the defendant-respondent alleging that the plaintiff was not at all interested in early hearing and disposal of the suit but continued to adopt dilatory methods by making belated prayers for local inspection, amendment of the plaint and taking matters to the High Court on flimsy, grounds and so on while the defendant being kept out of possession, was obliged to continue to deposit the rent for the premises in order to avoid a proceeding under section 17(3) of the West Bengal Premises Tenancy Act.

(3.) The learned Judge accepted the tenant-defendant's version and he found as a fact that the conduct of the plaintiff was not bona fide and that she was purposefully delaying and protracting the litigation. A plea was taken on behalf of the plaintiff-appellant that the second application under Sec. 144 of the Code was barred by res-judicata. The learned Judge rejected the plea and allowed the application of the tenant directing restitution as prayed for. Being aggrieved, the plaintiff-landlord has preferred the present appeal.