SHIBA PRASAD DAS Vs. VYSA TELI JATIYA SAMITI

JUDGEMENT

(1.) THE oppostie party, as plaintiff, has filed C. S. No. 86 of 2010 (III) before the learned Civil Judge (Senior Division), 1st court, Cuttack with the following reliefs:-

(2.) THE plaintiff has alleged that the defendant-petitioner in this writ petition is the tenant in respect of the two shop rooms as described in schedule-B of the plaint. The suit is basically a suit for recovery of arrear house rent along with damages. The petitioner has filed the written statement denying the title of the plaintiff over the said shop rooms, inter alia, claiming his title over the said shop rooms. After framing of issues, the petitioner filed an application to hear the issue with regard to maintainability of the suit as preliminary issue under Order 14, Rule 2 (2), C.P.C. on the ground that he has categorically stated in the written statement that he is not a tenant under the plaintiff and has claimed independent title over the suit land. It was further averred by him that in a Bebandobasta Case, which is subjudice before the Tahasildar, Sadar, Cuttack vide Bebandobasta Case No. 39 of 2002, he has filed an objection claiming sthitiban right over the said suit property and further, at his instance, W.R (C) No. 261 of 2009 is subjudice before this Court wherein this Court has passed order of status quo. On that basis, the petitioner claimed that the suit as laid is not maintainable.

(3.) THE learned trial court on hearing the said application by his order dated 22.9.2011 discussing the cases of the parties in detail and referring to the order of this Court passed in W.P. (C) No. 261 of 2009, by which the writ petition was dismissed, came to the preliminary conclusion that the defendant - petitioner cannot deny the title of the plaintiff in view of the house rent agreement. The learned trial court, however, observed that the defendant is at liberty to claim title in the suit and hence, the maintainability of the suit due to pendency of the Bebandobasta Case No. 39 of 2002 cannot be taken up as a preliminary issue as the same is a mixed question of facts and law. Holding thus, the learned trial court rejected the said application.