DIPAK SAHA Vs. JATINDRA MOHAN ROY

JUDGEMENT

(1.) The instant revisional application is taken up for hearing on contest being directed against the judgment and decree dated 3rd March, 1993 passed by the 10th Bench of City Civil Court at Calcutta in T.S. No. 1529 of 1986. By the impugned order, a suit which is off-shoot of a proceeding under section 6 of the Specific Relief Act stood dismissed on contest. The proceeding has a chequered background and a list of dates has filed before this Court indicating the marathon course of litigation in order to impress upon this revisional forum that the trouble of the decree holder has started after passing of the decree. Be that as it may, the plain case in brief is that the plaintiff got possession of a suit room as described in the schedule to the plaint on 7th April, 1986 in execution of the decree passed in S.C.C. Suit No. 4671 of 1978 against one Nanda Dulal Manna who is alleged to have been a licensee over them. The plaintiff No. 1 was present at the time of making over possession of the suit room by the court bailiff on the strength of a writ of possession. The plaintiff alleged that he was let into possession and after about expiry of more than two months the plaintiff was dispossessed by the defendant in an unauthorised and illegal manner. In the backdrop of the same, a proceeding was initiated under section 6 of the Specific Relief Act wherein the defendants entered appearance and contested the suit by filing written statement controverting the material allegations contained in the plaint. The stand taken by way of defence in the written statement was that Nanda Dulal Manna was never a licensee under the plaintiff but he was a tenant under the defendant No. 1. It was further alleged that the plaintiff No.1 got the decree in the connected S.C.C. Suit by practising fraud and a delivery of possession through police help was by way of a paper transaction and was effected without dispossessing the said Nanda Dulal Manna and the defendant No. 1 is still in possession thereof to the tenant symbolically or physically. It is also the case of the defendants that the defendant No. 1 has challenged the said S.C.C. Suit by filing a regular declaratory suit being Suit No. 1978 of 1978 pending in this Court and it is also in the said suit for cancellation of an agreement for sale and for other ancillary reliefs. The learned judge of the court below while passing the impugned order has tried to pinpoint the points to be dealt with by him in worse of the trial which is in the nature of a summary proceeding. The court below formulated two questions, namely. (1) whether the plaintiffs were in possession of the suit property described in the schedule to the plaint and he had been in possession within six months previous to the institution of the suit and (2) whether the plaintiffs have been deprived of their possession by the defendants otherwise than in due course than law. The points for determination in the impugned order are the points to be scrutinised within the ambit of purview under section 6 of the Specific Relief Act. On the basis of the same, the court below has proceeded further by way of premise that the following things the plaintiffs will be required to prove, namely, (1) That they were in possession (2) That they had been dispossessed and deprived of actual physical possession of the suit property (3) That dispossession took place without their consent (4) That it was done otherwise than in course of law and the said dispossession took place within six months before the institution of the suit. It appears from a plain reading of the adumbration of the points which are considered by the learned Judge in the court below as basic postulates to be found before passing an appropriate order and judgment before proceeding under section 6 of the Specific Relief Act There appears to be no scope for dispute as to the formulation of propositions but the learned court below preferred to go in for a scrutiny to arrive at its own inference namely, the plaintiffs have filed a voluminous document as if it is a title suit wherein the title and the right to possession of the suit property are to be proved. The said rider as super-added to the postulates propounded by the court below has brought about a difficulty as a result whereof it may be assumed that the court below has misdirected itself in making a proper appraisal of evidence and scrutiny of records. It is needless to mention that a proceeding under section 6 of the Specific Relief Act is a summary procedure, which is something different from the regular procedure in respect of contested suit. The question as appeared as meant by summary procedure in the context of this documents and it appears that by a summary procedure it is sought to be meant that the court may overstep some stepping stones which are in aid of fixing the date of peremptory hearing of a regular suit in respect of placement of a regular suit for peremptory hearing, certain modalities are prescribed and envisaged under the Code of Civil Procedure as discretionary and inspection as contemplated under Order 11 of the Code of Civil Procedure. Production and return of document as provided under Order 13 and settlement of issues under Order 14 CPC are pre-requisite postulates of para-materia before placement of the suit for peremptory hearing. It has been provided for under Order 16 and Order 17 CPC about summoning and attendance of witnesses and that question will arise at the time when the hearing of the suit will commence in terms of Order 18 CPC. Summary procedure tends to scuttle in general the provision as enumerated under Order 11, Order 13 and Order 14 of CPC Apart from formulation of the principle giving a pen-picture of outline of ambit of summary proceeding, it is necessary to refer to Section 6 of the Specific Relief Act which postulates that the burden of proving prior possession and dispossession by the defendant is on the plaintiff. One of the principal objects of Section 6 of the Specific Relief Act is speedy disposal of cases so that the defendant cannot create unnecessary obstruction for making the case ready for hearing by the plaintiff. Admissibility of evidence even in a summary proceeding no doubt is to be determined according to the provisions of the Evidence Act.

(2.) This Court has first been confronted with the submissions of Mr. Roy Chowdhury on behalf of the revisionist-petitioners and his grievance is centred round mainly on non-consideration of the writ of delivery of possession coupled with some of the annexures appended to the revisional application. Mr. Roy Chowdhury has drawn the attention of Court from the relevant annexures appended to the revisional application and it has been pointed out that in paragraph 3 thereof it has been averred that in S.C.C. Suit No. 4671 of 1978 on 25.3.80 in the Court of 5th Bench of Small Causes Court at Calcutta possession was taken by executing the same. Further attention of this Court has been drawn from Exhibit 18, namely from the averments made in a petition for injunction before the City Civil Court at Calcutta in T.S. No. 1929 of 1978 where the said Jatindra Mohan Roy in paragraph 3 has stated that the opposite party No.2 has taken possession of the major portion of the suit Premises through execution proceedings in connection with the aforesaid ejectment suit and order of the small Causes Court by dispossession the petitioner as tenant under him.

(3.) Mr. Gopal Chandra Mukherjee, in course of the submission has interjected to the submission of Mr. Roy Chowdhury by drawing the attention of the Court to the patent averment that it has taken possession of the major portion of the suit premises through execution of the proceedings. The said submission of Mr. Mukherjee, learned Advocate appearing on behalf of the respondents/opposite parties, is required to be appreciated in the context of the premise as well accepted. namely, possession of a part may sometimes be the possession of the whole, i.e., where it can be reasonably attributed to the right of the whole. The said premise finds credence from numerous early decisions including a well known decision reported in AIR 1934 Privy Council 185 in the case of Omannenu v. Chief Obeng. Next the attention of this Court has been drawn from Ext. 19, namely, from a petition filed before the City Civil Court in T.S. No. 1978 of 1978 and Mr. Roy Chowdhury has drawn attention of this Court to the amended poriton - "The plaintiff having been ousted from the suit premises by the defendant No, 2 in execution of the order for eviction passed in S.C.C. Suit. Mr. Roy Chowdhury has drawn attention of this Court to the germane expression contained in the amendment. According to him, in the impugned order no reference was made about the copious reference from documents which tend to reflect the averments in terms of pleadings including interlocutory petitions. Mr. Roy Chowdhury has tried to impress upon this Court to draw an adverse inference from the doctrine of estoppel by pleadings. This Court while perusing the judgment impugned is of the view that no reference was made to such galore of exhibits and it is not sure as to whether the court concerned is oblivious of the existence of those materials lying the record of proceedings. It is curious to not a cryptic finding recorded in the running page 6 of the impugned order where the learned Judge held- "The plaintiff, I find, took possession after evicting Nanda Dulal Manna". The same was proceeded with a question where the learned Judge opined-"We are to see here whether the plaintiff got possession of the suit room in execution of the said decree on 7.4.86. There does not appear to be any missing link between the preceding premise and the conclusion arrived at in unambiguous terms. There after the Court dilates in other aspects of the matter. Before this Revisional Court proceeds further, it tends to refer to paragraph 9 in case of Vinod Kumar Arora, v. Smt Surjit Kaur, Respondent, reported in AIR 1987 SC 2179 where the Supreme Court has held that when the Court of fact has lost sight of relevant pieces of evidence then the finding of fact is open to be assailed before the Revisional forum. In order to lend further force to the aforesaid judgment, Mr. Roy Chowdhury has referred to the case of Mihirlal Dig, Appellant, v. Panchkari Santra Ors., reported in 54 CalWN 637 where the Division Bench of this High Court has held that omission to look into the record of the case is a gross irregularity in the exercise of jurisdiction and such non-reading of record is liable to set aside by the High Court in revision under section 115 of the Code of Civil Procedure. This Court would have appreciated if the learned court below would have referred to those exhibits and would have arrived at an opinion by not lending support to the same. But unfortunately the court below is conspicuously silent about the presence of those materials on record and the said conspicuous silence is being questioned by Mr. Roy Chowdhury. This Court after going through the submissions of Mr. Roy Chowdhury has landed itself in a welter of confusion that the plaintiff took possession after evicting Nanda Dulal Manna in execution of the said decree on 7.4.86. In the wake of such finding, the other discussion with regard to ancillary matters about partial records and ultimately the learned Judge comes to the conclusion that he is of the view that the plaintiffs have not been able to prove their actual physical possession over the suit premises on 7.4.86. The attribute ascribed to physical possession is to be taken in the light of juridical possession and there is a dichotomy between the finding recorded earlier and the finding recorded at a subsequent stage. This revisional Court is not in a position to reconcile itself to the inherent element of incongruity with regard to the findings made at different places. This Court is also of the view that Court below has gone in for exercise by way of lopsided importance attached to some exhibits overlooking the presence of others. The court below will be required to take into account the entire perspective of totality as to be discerned from the ambit of records. Mr. Mukherjee has of course tried to justify the conclusions because according to his submission the yardsticks applied by him in controverting some of the materials to those of others are congenial and convincing. But this Court finds that there is nothing on record to be found from the perusal of the impugned judgment and order where the trial court has disapproved of the relevant annexures by giving reasons thereof. In that view of the matter, this Court feels that there is an apparent error in exercise of Jurisdiction in disposal of the matter in question and, as such, the impugned order is set aside for ends of justice. The matter in question is remitted back to the concerned court, namely, before the 10th Bench of City Civil Court at Calcutta and T.S. No. 1529 of 1986 is directed to be reheard and disposed of according to merits on available materials on record.