KARTICK DAS Vs. KAMAL GHOSH

JUDGEMENT

(1.) This Miscellaneous Appeal has been preferred challenging the judgment and order dated 19.1.1998 passed by the learned 10th Assistant District Judge, Alipur in Miscellaneous Appeal No. 276 of 1997 affirming the order dated 27.5.1997 passed by the learned Munsif, 2nd Court at Alipur in Miscellaneous Case No. 50 of 1996.

(2.) The background of the case may be summarised in the manner as follows: The respondent Nos. 1 and 2 Sri Kamal Ghosh and Sri Amal Ghosh are the owners in respect of premises No. 208A, Rash Behari Avenue, Calcutta-29. Once Sri A.K. Dutta was the monthly tenant in respect of South Eastern Flat of the second floor of the said premises at a rental of Rs. 550.00 payable according to English Calendar month. The rent was being paid in two shares that is Rs. 275/- each to the respondent Nos. 1 and 2 (Sri Kamal Ghosh and Sri Amal Ghosh). It appears from the records that on July 1988 the respondent Nos. 1 and 2 filed Title Suit No. 338/88 in the Court of learned 2nd Munsif at Alipur against one Lakshmi Rani Dutta. Originally A.K. Dutta was the tenant and Lakshmi Rani Dutta was his wife. The original tenant A.K. Dutta died and Lakshmi Rani Dutta became the tenant therein. Now as stated this suit for eviction and for mesne profits as well as for recovery of possession was filed by the owners against Lakshmi Rani Dutta who was made defendant. In September 1988 said Lakshmi Rani Dutta entered appearance in the suit and filed applications under section 17(2) and section 17(2)(a)(b) of the West Bengal Premises Tenancy Act. She did not however file any Written Statement. On 22.5.1989 another Title Suit was filed by the owners being T.S. No. 36/1987 against Lakshmi Rani Dutta praying for permanent injunction against her from assigning, prevailing and/or pertaining with possession of the tenanted flat. The said suit was decreed on 30.10.1989. Smt. Lakshmi Rani Dutta, the defendant in the suit died without leaving any heir or legal representative.

(3.) Thereafter, on 20.12.1989 Sri Kartick Das, the appellant herein filed two applications in the suit being T.S. No. 338/88 (which is the title suit and the proceeding arising thereof concerned in this second appeal), one under Order XXII Rule 5 and another under Order XXII, Rule 4A of the Code of Civil Procedure for the determination of the appellant as the legal representative of the said deceased for substitution in the suit and for appointment of Administrator General for the purpose of the said suit till disposal of the application under Order XXII, Rule 5 of the Code of Civil Procedure. On 29.1.1990 the learned Munsif by an order kept the petition under Order XXII, Rule 5 of the Code of Civil Procedure in abeyance on the ground that a probate case is pending. The learned Munsif, however, allowed the other petition under Order XXII, Rule 4A of the Code of Civil Procedure and appointed the Administrator General to represent the suit on behalf of the deceased defendant On 2.3.1990 the appellant herein was directed by the learned Munsif to deposit Rs. 25,000/- as cash security in the office of the Administrator General against arrear rent. Being aggrieved by the said order dated 2.3.1990 directing the appellant to deposit the amount, the appellant filed a revisional application before the learned District Judge at Alipur. The said revisional application was rejected by the 3rd Court of Additional District Judge, Alipur. Challenging the order dated 17.12.1990 passed the learned Additional District Judge rejecting the revisional application filed by the appellant herein, an application under Article 227 was moved before this High Court and by an order dated 5.2.1991 one of the learned single Judges of this High Court rejected the said application. Ultimately, on 20.4.1993 the appellant deposited the sum of Rs. 25,000/- in the trial Court.