BANAWARI LAL KAPOOR Vs. ARABINDA BASU

JUDGEMENT

(1.) THIS revisional application under section 115 of the Code of Civil Procedure is directed against an order passed on December 21,1991 by the learned Munsif, 2nd Court, Alipore, 24-Parganas in Misc. Case No. 73 of 1990 under Section 47 of the Code of Civil Procedure in Title Execution Case No. 33 of 1982 arising out of Tile Suit No. 517 of 1990. The Opposite Parties filed a Title Suit being T. S. No. 517 of 1990 in the 2nd court of Munsif at Alipore against the petitioner, inter alia praying for a decree for recovery of khas possession of the tenanted portion of the petitioner on the ground of default in payment of monthly rent and for using the tenanted portion for the purpose other than residential.

(2.) THE suit was decreed as far back as on September 15, 1981 and thereafter various proceedings followed for about 10 years and till now the landlord has not yet been able to got possession of the promises in question in spite of the fact that the suit was decreed on September 15, 1981.

(3.) THERE were various proceedings initiated and the matter reached upto the Hon'ble Supreme Court and the tenant/petitioner lost al throughout. Then when the decree was put in execution, the: landlord/opposite parties initiated misc, Case 18 of 1989 under Order 21 Rule 97 of the Code of Civil Procedure. Receiving notice of the said Misc. Case the tenant/petitioner filed an application under section 47 of the Code of Civil Procedure for challenging the falsity and excitability of the said decree inter alia on the ground of nullity of the decree. The principal contention of the tenant/petitioner in the application under Section 47 of the Code of Civil Procedure was that the judgment did not record any satisfaction of the learned trial court as to whether any of the grounds as enunciated in Section 13 (1) off the West Bengal Premises Tenancy act. 1956 was present. The further grievance of the petitioner was that the learned trial court did not dwell upon the validity or even the existence of a notice to quit as contemplated under Section 13 (6) of the aforesaid 1956 Act. The learned executing court dismissed the application of the tenant/ petitioner under section 47 and the Code of Civil Procedure by the impugned order. Hence the instance revisional application. Before proceeding further it may necessary to peruse the judgment itself which was passed on September 13, 1981 The judgment reads as follows : t. S, 5. 517/80 order No. 7 dt. 15. 9. 81. Plff files hazira. No steps; taken by the defendant who is absent on repeated calls. It is now 3. 10 P. M. The suit is taken up of ex parte hearing, P. W. I. Amal Kumar is examined. Documents marked at ext. 1, 2, 3, and 4 for the plaintiff. Hd. considered. This is a suit for recovery of Khas Possession on evicting the defendant therefrom. Plaintiffs have filed this suit for ejectment against the defendant on the ground of default and on the ground that the defendant has been using the suit premises other than residential purpose. Plaintiffs' case is proved from the expert evidence of P. W. I. Amal kumar Basu coupled with the exhibited documents. Nothing to disbelieve. C. F. paid is correct. Hence. That the suit be decreed ex parte with costs against the defendant. Plaintiff do get a decree for ejectment against the defendant in respect of the premises in suit on evicting the defendant therefrom. Defendant is hereby allowed two months time to quit and vacate the premises in suit amicably in favour of the plaintiff, failing which the plaintiff shall be at liberty to execute the decree through court. "