SUNIL SHAW Vs. ZUBAIDA HAMID

JUDGEMENT

(1.) This is an application seeking transfer of proceeding being Misc Case 208 of 2017 along with the Misc case no. 81 of 2019 arising out of Ejectment execution Case no. 10 of 2016 in connection with Ejectment suit no. 39 of 2005, from the Court of learned Civil Judge (Jr. Division) 2nd Court at Alipore to any other court of learned Civil Judge (Jr. Division) at Alipore for disposal.

(2.) Petitioner contended that a cardinal point of jurisdiction pursuant to the mandatory provisions under sec. 8(3) and sec. 21 of the West Bengal Thika Tenancy (Acquisition and Requisition) Act, 2001 was raised in a proceeding for eviction from Thika property being Ejectment suit no. 39 of 2005 and it was contended that sec. 8(3) of the said act specifically provides that the eviction suit in a Thika property is barred under the said Act. The petitioner herein filed the said Misc Case under order XXI rule 98, 99, 100,101 read with sec. 47 and sec. 151 of the code of Civil procedure and in that Misc. Case he also filed an application under sec. 94 read with sec. 151 of C.P.C. for temporary injunction. Opposite party No. 1 being the alleged decree holder put the decree of eviction in execution through police help under order XXI rule 97 of C.P.C. being Misc case no. 208 of 2017. However, the learned judge of the executing court inspite of the repeated submissions about the question of jurisdictional point, has not disposed of the said application till date and thus the petitioner has reasonable apprehension that if the matter proceed further before that court the petitioner will not get justice. This is also because the court below has not yet disposed of the issue on the question of jurisdiction.

(3.) Petitioner further submits that the point for determination of the aforesaid issue is the crux of the matter and the court below deliberately and intentionally and willfully had/has been avoiding to settle that particular point and has been acting in favour of opposite party no. 1. Subsequently by order dtd. 20/3/2021 learned court below observed that it would be proper to execute the decree through police help without disposing said pertinent issue. Moreover said executing court vide order dtd. 22/9/2022 in connection with Misc. Case No. 81 of 2019, directed the petitioner to make payment of Rs.50,000.00 as occupational charges in regard to imposition of stay against execution proceeding, being Ejectment Execution No. 10 of 2016.