LAMBODHAR SHAW Vs. PANNALAL SHAW

JUDGEMENT

(1.) THIS application is directed against the order no. 15 dated 30. 08. 2008 and order no. 18 dated 22. 09. 2009 passed by the learned Chief Judge, Small Causes Court at Calcutta in Ejectment Suit No. 275 of 2007 whereby by the first order the learned Trial Judge allowed an application under Order 6 Rule 17 of the Code of Civil Procedure filed by the defendant/petitioner as well as allowed the application under Order 39 Rule 7 of the C. P. C. filed by the plaintiff/opposite party for inspection of his premises. By the second order the learned Trial Judge dismissed the application under Section 151 of the C. P. C. filed by the defendant/petitioner for stay of the operation of the order dated 30. 08. 2008.

(2.) THE fact of the case in short is that the plaintiff/opposite party filed the ejectment suit no. 275 of 2007 for ejectment of the defendant/petitioner from the premises in suit described in the schedule of the plaint on the ground of default, reasonable requirement, etc. The plaintiff/opposite party filed an application for local inspection of his own premises but that application was allowed without any observation by the learned Trial Judge. One partition suit was filed for effecting partition of the suit property along with other properties amongst the plaintiff/opposite party and his co-owners. A preliminary decree was passed in that suit declaring the plaintiff/opposite party having 1/6th share in the properties of the parties. That suit is pending at present for passing the final decree on the basis of the report of the partition commissioner. The defendant/petitioner has come up with the application for stay of the suit on the ground that the plaintiff/opposite party is not the absolute owner of the suit premises and the dispute between the plaintiff/opposite party and his co-owners is still pending. So the suit should be stayed till the date of passing the final decree for partition. The Court did not make any observations while the application for local inspection was allowed. So the impugned orders should be set aside. The plaintiff/opposite party is contesting the application.

(3.) THE learned Advocate for the defendant/petitioner contends that the ejectment suit being one on the ground of reasonable requirement, the plaintiff/opposite party is required to show that he is the owner of the suit property. But as per rent receipt appearing at page 20 of the petition, one Saraswati Devi, received the rent as a trustee of the suit property and the plaintiff/opposite party is not the owner of the same at all. As the dispute between the plaintiff/opposite party and his co-owners is still pending so the plaintiff/opposite party is not the owner of the suit property and so the suit should be stayed. He also contended that the application under Order 39 Rule 7 of the C. P. C. was disposed of without disclosing the ground for disposal of the same but he has no grievance for allowing the application of the defendant/petitioner under Order 6 Rule 17 of the C. P. C. On the other hand, the learned Advocate for the plaintiff/opposite party supported the impugned orders.