KALIPADA MAITY Vs. SUKUMAR BOSE

JUDGEMENT

(1.) This appeal is directed against an order of Sri S.P. Chatterjee, Judge, City Civil Court, refusing to make a complaint against the respondent in respect of the offence of perjury alleged to be committed by him.

(2.) The appellants filed a suit in the City Civil Court on 24th June, 1959--Title Suit No. 335/1959--against the Corporation of Calcutta, Sukumar Bose (Superintendent, College Street Market), and some other persons, for recovery of possession of 73 sq. ft. of floor area of which they are alleged to have been wrongfully deprived by shifting of a partition wall, and for other reliefs. According to the case of the appellants, one K.L. Talan was the lessee of stall No. E. 95 and some other stalls of College Street Market in 1950 and had sublet separate and denned portions of ledges of the stall to different persons, including the plaintiff-appellants. On May 15, 1954 the lease of K.L. Jalan was determined, and the sub-lessees including the appellants applied to the Public Utilities and Markets Committee of the Calcutta Corporation for direct leases. On January 18, 1955, this Committee granted the prayers of these sub-lessees on certain terms and directed the subdivision of stall No. E95 into four small stalls with numbers and floor areas as follows: E 95/1 ... 297 sq. ft. E 95/2 ... 90 sq. ft. E 95/3 ... 98 sq. ft. E 95/4 ... 90 sq. ft. The District Engineer, District II, prepared a partition plan accordingly, but the respondent Sukumar Bose, who as the Superintendent of the Market was to carry out the partition, shifted a portion of the partition wall in collusion with defendant No. 3 Mamator Ahmed and defendant No. 4 Md. Ahamed who had jointly obtained lease of stall E 95/1, so as to increase the area of stall E95/1 by 43 sq. ft. at the expense of stall No. E95/3 and 30 sq. ft at the expense of Stall No. E95/4, thus reducing the areas of stalls E 95/3 and E95/4 to 55 and 60 sq. ft. respectively. The appellants being lessees of stalls E 95/3 and 95/4 protested against such violation of the arrangement approved by the Markets Committee, but being unable to obtain relief, filed the suit in question.

(3.) On the same day as the suit was filed, the applicants prayed for a temporary injunction restraining defendants Nos. 1 and 2 from interfering in any manner with the trade and business of the appellants in stalls E 95/3 and E 95/4. In paragraph 5 of the petition with affidavit for such temporary injunction, the appellants stated that prior to the sanction of partition of stall No. E/95 by the Market Committee on or about January 18, 1955, there was another proposal for sub-division of the stall in agreement with the appellants, but that was dropped at the instance of defendant No. 2 (the respondent). The respondent, on behalf of defendants 1 and 2, filed an affidavit-in-opposition on 23rd July, 1959, wherein he stated in paragraph 7 that he denied each and every allegation made in paragraph 5 of the appellants' petition. The appellants on 9th September, 1959 filed an application requesting the learned. Judge to file a complaint against the respondent Sukumar Bose for having deliberately made a false statement in his affidavit dated the 23rd July, 1959 denying the earlier proposal for partition of the stall. In the course of that petition, the appellants stated that Sukumar Bose himself had submitted a report on June 5, 1954 making his first proposal for the sub-division of the stall, and that in an affidavit it sworn on 14th January, 1955 in connection with a suit on the Original Side of the High Court, Sukumar Bose had stated that he had submitted such a report; and that, therefore, the denial now made was deliberately false.