SRI BIMAL SHARMA Vs. SRI PARESH CHANDRA SAHA

JUDGEMENT

(1.) This is to consider a revisional application under Sec. 115 of the Code of Civil Procedure arising out of an order No. 28 dated 7.2.1995 passed by Sri A.K. Mukherjee, learned Assistant District Judge, 2nd Court, Hooghly in connection with Title Appeal No. 8 of 1992 allowing the petition of the O.P. permitting the P. W.1 Paresh Chandra Saha to be examined on the points given in the petition dated 22.4.1994.

(2.) It is stated in the revisional application that the petitioner took a tenancy from Sri Amar Nath Ghosh, the then owner and thereafter the petitioner made a construction at his own cost and since then the petitioner has been carrying on manufacturing business of wooden furniture. It is also stated that the O.P. some time in 1979 purchased the said plot of land from the original owner Amarnath Ghosh and thereafter the petitioner started paying monthly rent in respect of the said premises and paid rents upto the month of May, 1985. But, thereafter the O.P. refused to take the rents from the petitioner and finding no other alternative the petitioner sent the monthly rents from June, 1985 to Nov. 1985 by postal money order to the O.P. The petitioner also remitted the rent for the month of Dec. by postal money order but the O.P.'s refused to accept the same and thereafter filed the Title Suit being T.S. No. 173 of 1986 for decree of khas possession and eviction of the revisionist from the suit premises and for other reliefs. The revisionist contested the suit and the learned Trial Court was pleased to dismiss the suit on 18.12.1991. Thereafter, the plaintiff/O.P. filed the appeal being Title Appeal No. 8 of 1994 and the revisiohist also appeared in the said Appeal. In the said appeal the O.P. appellant filed an application under Order 41 Rule 27 of the Civil Procedure Code for adducing evidence which was also contested by the revisionist. The appellant in the said application waned to examine the P.W.1 on the following issues :

(3.) Mr. S.P. Sharma, the learned Advocate appearing for the revisionist/defendant submits before me that the impugned order dated 7.2.1995 is as regards the two petitions dated 22.4.1994 and 7.2.1995. It is pointed out by Mr. Sharma that after the filing of the present revisional application before this Court, this Court was pleased to pass a stay order as regards the proceeding of the appeal pending before the appellate Court but the appellate Court had disposed of the appeal during the pendency of this revisional application and subsistence of the stay order passed by this Court. It is pointed out by Mr. Sharma that in both the applications dated 22.4.1994 and 7.2.1995 the similar grounds were taken by the plaintiff that due to some mistake the learned Advocate for the plaintiff could not take some points from the P.W. 1 during his examination before the Trial Court. Mr. Sharma has further submitted before me that the Trial Court was pleased to dismiss the suit on one of the grounds that the service of notice was not made properly and this lacuna had been filled in if the P.W. 1 is permitted to be examined further by the lower appellate Court. It is also pointed out by Mr. Sharma that from the deposition of the P.W 1. it appears that some of the matters appearing in the schedules to those two petitions were already in the evidence of the P.W.1.