TAPAN BHATTACHARJEE Vs. STATE

JUDGEMENT

(1.) THIS petition under section 115 C. P. C. is directed Against Order dated 14. 12. 82 passed by the Additional District Judge, darjeeling, in Misc. Appeal No. 8 of 1982. affirming order No. 117 dated 23 8. . 32 passed by the Subordinate Judge, Darjeeling, in Misc. Case No. 32 of 1982. The, backdrop of the said orders may be stated as follows :-

(2.) ON 7. 8. 67 Sm. Snehalata Devi widow of P. K. Chatterjee, since deceased filed ;an ejectment suit being O. C. Suit no. 28 of 1967 against one Kalika Prasad Gupta, the father of Madan Mohan gupta and Others, for recovery of possession of the suit premises. During the pendency of the said suit the said Kalika Prasad died. On 14. 9 68 the said suit was - decreed by the Trial court. Madan Mohan gupta and others being the heirs of the said Kalika Prasad Gupta filed an appeal being O. C. Appeal No. 14 of 1968. in the Court of District Judge at Darjeeling. On 31. 10. 73 O. C. Appeal No. 14 of 1968 was heard and dismissed. On 8. 2. 74 madam Mohan Gupta and another filed a second Appeal being S. A. No. 465 of 1974 in this Hon'ble Court. On 1. 1. 77 Sumbhuram Berelia, the opposite party herein, purchased the suit property from sm. Snehalata Devi for valuable consideration. On 8. 8. 79 Sambhuram Berelia made an application for addition of party in this Court in She said appeal for the atoresaid reason and the same was allowed by N. C. Mukherji, J. On 3. 2. 81 s. A. 465 of 1974 was heard by Banerjee, j. and the same was dismissed after hearing the parties at length. On a prayer being made on behalf of the appellants this Court was pleased to grant time till 31st December, 1981 to vacate the suit premises on condition that the appellants would go on paying the rent of Rs. 50/- per month for use and occupation of the premises first of such payment was directed to be made on February 15, 1981 being the rent for the month of February 1981 and thereafter would go on paying the rent within the 15th of each succeeding month in advance. All the payments were directed to be made in the Trial Court. His Lordship directed that in default of payment the decree would become executable at once. In May 1981 since Madan mohan Gupta and Another, the said Appellants failed and neglected to make payment of rent as directed by this Court. The said Sambhuram Berelia started execution proceeding being O. C. Execution Case No. 34 of 1973. On 22. 5. 81 tapan Bhattacharya filed a suit being o. C: Suit No. 31 of 1981 in the Court of the Sub-ordinate Judge, Darjeeling, inter alia for a declaration that he was not bound by the decree in execution in o. C. Execution Case No. 34 of 1973, he could not be evicted thereby and for permanent injunction. The said Tapan bhattacharya also filed an application for ad-interim injunction. On 17. 10. 81 after hearing the parties the learned subordinate Judge was pleased to dismiss the said application for injunction, dt 9. 11. 81, being aggrieved by and dissatisfied with the said order the said tapan Bhattacharya preferred an appeal being Misc. Appeal No. 9 of 1981 in the court of Judge, Darjeeling. On 21. 12. 81 after hearing the parties learned Additional District judge Darjeeling, dismissed the said appeal with costs. On 17. 1. 82 an application under Section 115 of the C. P. C. was filed in the Court against the said order of dismissal of appeal by the learned Additional district Judge, Darjeeling. On 1. 4. 82 the said revisional application being Civil order No. 865 of 1982 was called on for hearing before the Hon'ble Mr. Justice m. M. Dutta when the learned Advocate, for the said Tapan Bhattacharya did not press the said revisional application before His Lordship, but only wanted some time so as to enable the said Tapan bhattacharya to vacate the suit premises. His Lordship was pleased to dismiss the said application, but granted two months time to vacate and deliver up vacant and peaceful possession of the suit premises to the opposite party Sambhuram Berelia. His Lordship directed that the said Sambhuram Berelia would not execute the decree for the said period of 2 months, but, if the said Tapan bhattacharya does not deliver up possession of the suit premises within the period, as directed above, the said opposite party Sambhuram Berelia would be entitled to go on with the execution of the decree for recovery of possession of the suit premises from the petitioner.

(3.) ON 2. 6. 82 Tapan Bhattacharya filed an objection in the said execution proceeding being O. C. Execution Case No. 34 of 1973, and the said application was registered as Misc. Case No. 32 of 1982 under Or, XXI R. 101 read with S 151and 47 CPC. On 22. 6. 82 the said suit being o. C. suit No. 3i of 1981 was dismissed for default. On 23. 8. 82 after hearing the parties the learned Subordinate Judge, darjeeling dismissed the said objection being Misc. Case No. 32 of 1982. On 27. 8. 82 the said Tapan Bhattacharya filed an appeal being Misc. Appeal No. 8 of 1982 in the Court of the learned District Judge, Darjeeling. On 14. 12. 82 after hearing the parties the learned Additional District judge, Darjeeling, Was pleased to dismiss the said appeal being misc. Appeal No. 8 of 1982 with costs holding inter alia that the said appeal had no merit.