BHUPENDRA YADAV Vs. LAXMI DEVI SHAW

JUDGEMENT

(1.) THIS application is at the instance of the defendant and is directed against the order dated January 12, 2010 passed by the learned Civil Judge (Junior Division), Third Court at Sealdah in Title Suit No.387 of 1983.

(2.) THE plaintiffs / opposite parties herein instituted the said suit for recovery of khas possession of the suit premises, as described in the schedule of the plaint against the defendant/petitioner herein on the ground of default, reasonable requirement, etc. THE defendant/petitioner is contesting the said suit by filing a written statement denying the materials allegations raised in the plaint amongst other grounds. THE defendant has contended that there is no relationship of landlord and tenant between the parties and that the suit is bad for defect of parties. THEreafter, the opposite party no.10 has been added as party to the suit in an application under Order 1 Rule 10 of the C.P.C. and this person claims as owner of the premises in suit. By the impugned order, the learned Trial Judge has observed that the Court has already decided the relationship of landlord and tenant between the parties. THEreafter, the Honble Court directed the learned Trial Judge to determine the relation afresh in presence of the opposite party no.10, Bani Ghosh. THE learned Trial Judge has also observed that there is no provision of law to reopen any matter conclusively decided with the relationship and so, the petition of the defendant to frame an issue whether there is any relationship of landlord and tenant between the parties, has been rejected. Being aggrieved, this application has been preferred.

(3.) MR. Halder, learned Advocate on behalf of the petitioner, submits that in the order passed by the learned Trial Judge while disposing of the application under Section 17(2) of the 1956 Act, the findings made by the learned Trial Judge are of interlocutory in nature and they shall not bind the suit. In support of his contention, MR. Halder has relied upon the decision of 1991 (1) CHN 443, particularly paragraph nos.15 & 16 and thus, he has submitted that the findings are tentative and interlocutory in nature and it is not final at all. This decision, I hold, will not be applicable in the instant situation because in the instant suit, the Court has made a clear finding that there is a conclusive determination of the relationship of landlord and tenant between the plaintiffs and the defendant in the said suit and the defendant has been directed to pay an amount equivalent to rent under Section 17(2) etc. of the said 1956 Act. Since the determination has already been done conclusively, there is no question of reopening the said issue again. Therefore, this decision will not be applicable in the instant case. For that reason, the learned Trial Judge has rightly rejected the application of the petitioner and there is no scope of interference with the impugned order.