SAMAR ROY Vs. PURNIMA SHAW

JUDGEMENT

(1.) Challenging the judgment and order dated 9th March, 2004 passed by the learned Judge, 12th Bench, City Civil Court at Calcutta in Misc. Appeal No. 57 of 2003 affirming the judgment and order dated 2nd August, 2003 passed by learned Judge, 3rd Bench, Small Causes Court at Calcutta in Misc. Case No. 229 of 2000, this Second Miscellaneous Appeal was preferred by the appellant who was the applicant of an application under Order 21 Rule 101 of the Code of Civil Procedure praying for a declaration that decree of eviction passed in Ejectment Suit No. 332 of 1992 being an ex parte decree was bad in law and not enforceable against him and the Ejectment Execution Case No. 47 of 1995 arose out of the said decree was not at all enforceable on the ground that prior to filing of the eviction suit by the plaintiff of the suit, the tenant Vidyadhar Rath surrendered his tenancy right on 15th June, 1991 to one of the co-owner landlord of the suit premises, namely, Murati Shaw who subsequently inducted the present appellant, Samar Roy, as a tenant, of the suit premises with effect from July, 1991, who in turn was praying the proportionate rental to the extent of 1/4th share of the suit premises to said landlord Murati Shaw. On 7th July, 2004, this appeal was admitted for hearing under Order 41 Rule 11 of the Civil Procedure Code by the Division Bench (Coram: A.K. Ganguly & Japan Kr. Dutt,JJ.) on framing the following substantial questions of law: -

(2.) One Motilal Shaw as an owner of the suit premises inducted one Vidyadhar Rath as a monthly tenant Motilal Shaw died leaving a Will in respect of the suit property and other properties, which got duly probated. On 15th June,1992, respondent No.1 herein as executrix of the Will filed Ejectment Suit No. 332 of 1992 jn the City Civil Court,10th Bench against tenant, Vidyadhar Rath, on the ground that defendant Vidyadhar Rath defaulted in payments of rent, had sublet the tenanted premises, a tile shed room on the ground floor of Premises No. 23, Banamali Sarkar Street, Shympukur, Kolkata to one Sri Samar Roy, the present appellant herein and the suit room was required for her own use and occupation. Suit was decided ex parte as Bhagyadhar did not contest and a decree of eviction was passed on 26th May, 1994, which was placed for execution of the decree resulting Execution Case No. 489 of 2000. This execution was resisted by the present appellant, Samar Roy, filing an application under Order 21 Rule 101 of the Code of Civil Procedure praying for a relief that decree was not executable on setting up a case of independent right as a tenant in the suit premises being inducted by respondent No.3, Murati Shaw, at a monthly rental of Rs.120/- per month with effect from July, 1991 on payment of proportionate rental of Rs. 30/- per month to Murati Shaw who is the 1/4th share holder of the suit premises as was decreed in his favour in a partition suit, which reached its finality even in appeal in the High Court at Calcutta and thereafter due to rejection of the Special Leave Petition, after surrender of tenancy right by Vidyadhar Rath on vacating the possession of tenanted premises in favour of Murati Shaw in June, 1991 prior to the filing of the eviction suit by the respondent No.1.

(3.) This application was opposed by the respondent No.1 but supported by the respondent No.3, Murati Shaw, by filing their respective documents.