w w w . L a w y e r S e r v i c e s . i n

Calcutta Teachest & Fibre Limited v/s Vijoy Kumar Bhausingka

Company & Directors' Information:- S S S FIBRE LIMITED [Active] CIN = U17110PB2005PLC027818

Company & Directors' Information:- G L FIBRE PRIVATE LIMITED [Strike Off] CIN = U17112PB2010PTC033873

Company & Directors' Information:- INDIA FIBRE PVT LTD [Active] CIN = U17232WB1968PTC027401

    C.O. No. 4074 of 2006

    Decided On, 19 July 2010

    At, High Court of Judicature at Calcutta


    For the Petitioner: Abhrajit Mitra, Anirban Roy, S. N. Pyne, Advocates. For the Respondent: J. R. Chaterjee, T. N. Halder, Advocates.

Judgment Text

Kanchan Chakraborty, J:

1) The legality, validity and propriety of the order no. 19 dated 11.10.2006 passed in Ejectment Case No. 68 of 2004 and Execution Case No. 54 of 2006 passed by the learned Additional Court of the Civil Judge, Junior Division, Sealdah, has been challenged in this revision application by one Vijoy Kumar Bhausingka.

The facts leaving to the revision application are as follows:

a) M/s Calcutta Teachest & Fibre Limited instituted one Ejectment Suit being no. 68 of 2004 passed by the Court of learned Civil Judge, Junior Division, Sealdah praying for eviction of monthly tenant H. P. Bhausignka in respect of premises no. 34B, B.T. Road, P.S. Cossipore, Calcutta- 700002 on the ground of default in payment of monthly rent. The suit was decreed ex parte on 21.9.2004 with a direction on the defendant to vacate and hand over the possession of the scheduled property to the plaintiff within one month. The decree was put in execution on the prayer of M/s Calcutta Teachest & Fibre Limited which was registered as Misc. Execution no. 54 of 2006. In the year 2005, the present petitioner Vijoy Kumar Bhausignka and Susila Debi Khaitan filed an application in the executing Court under order 21 Rule 99,100,101 read with Section 151 of Civil Procedure Code and Section 35 of the West Bengal Premises Tenancy Act, 1997 alleging therein that H. P. Bhausignka, the original defendant died before the Eviction Suit was instituted against him. The present O.P. V. K. Bhausignka being son of H. P. Bhausignka by the petition above prayed for declaration to the effect that the ex parte decree passed in Ejectment Suit no. 68 of 2004 was a nullity and as such, was not supposed to be executed. That prayer was opposed by the present petitioner M/s Calcutta Teachest & Fibre Limited. The learned Trial Court, upon consideration of the petition together with the written objection declared the ex parte order a nullity on 9.3.2005. On 6.9.2006, the ex parte decree, however, was executed although the decree was declared null and void on 09.3.2005. As a result of execution of said null and void decree, the present petitioner was ousted from the suit premises. He filed an application under Section 39(14) and 39(15) of the WBPT read with Section 151 of Civil Procedure Code praying for restoration of his possession over the suit property as tenant with help of police.

b) That prayer was opposed by the present petitioner M/s Calcutta Teachest & Fibre Limited. By the impugned order dated 11.10.2006, the learned Trial Court in exercising its inherent power under Section 151 Civil Procedure Code allowed the prayer of the present opposite party Vijoy Kumar Bhausignka and directed the present petitioner to restore possession of the opposite party within 10 days. The learned Court also directed the Officer-in-charge of Cossipore Police Station to render all necessary and lawful assistance to ensure that possession is restored to the present opposite party within the time stipulated in the order.

2) Being dissatisfied with the said order dated 11.10.l2006, this revision application have been filed by M/s Calcutta Teachest & Fibre Limited on the ground that the learned Court, in fact, reviewed his order passed earlier and it had no jurisdiction to pass such an order.

3) The short point arises for consideration is whether or not the learned Court had rightly exercised its inherent power under Section 151 of Civil Procedure Code.

4) Mr. T. N. Halder appearing on behalf of the Opposite Party contended that a decree which was declared null and void by the competent Court of law was not subject to execution. The Ejectment Suit was filed long after the death of the original defendant. The ex parte order was passed on 21.9.2004 which was a nullity. The present opposite party being son of the original tenant filed an application under Order 21 Rule 99, 100, 101 read with Section 151 Civil Procedure Code in the Execution case praying for declaring the decree dated 21.9.2004 a nullity. The learned Trial Court, upon consideration of the entire facts allowed the prayer on contest. Mr. Halder contended that the said order was never challenged by the present petitioner. He had drawn my attention to Annexure I and submitted that the decree in question was declared null and void on 9.3.2005 i.e. long before the possession of the suit property was handed over to the present petitioner by the Bailiff of the Court. Mr. Halder submitted that every action in the Execution Case was illegal and ineffective because their existed no valid decree in the eye of law. In fact, he submitted, there was no existence of any Ejectment Suit for the decree passed was null and void ab initio. Mr. Halder contended that a man can not be evicted without due process of law. Therefore, the learned Trial Court was quite justified and correct in directing the present petitioner to restore possession of the opposite party in the suit premises and if necessary police assistance be rendered.

5) I find that there was a complete mess in the entire matter. There existed no legal and valid decree at the time when the decree which was declared null and void was executed. Prior to execution of the decree on 6.9.2006 the decree itself was declared a nullity. Therefore, the execution of the said null and void decree and thereby ousting the present opposite party from the suit premises was entirely illegal, unethical and improper.

6) The learned Court while disposing of the petition on 11.10.2006 expressed clearly that the possession so taken over by the present petitioner was entirely illegal and, as such, it found it justified to exercise its inherent power under Section 151 of Civil Procedure Code to render justice and put the mess into order.

7) Whether or not a man lawfully entitled to possess a property as tenant by way of inheritance is a point which can be raised in a suit. But he can not be evicted with the help of a null and void decree. The present petitioner is not remediless. He can well institute a suit for eviction against the opposite party.

8) Having considere

Please Login To View The Full Judgment!

d the entire episode and submission of Mr. Halder I am of opinion that there was no alternative for the learned Trial Court but to pass the order impugned in order to render justice by exercising its power under Section 151 Civil Procedure Code. 9) I am not inclined to interfere with the order impugned in this revision application. 10) Accordingly the revision application, thus , fails and is disposed of. 11) Interim stay order, if any, be vacated. 12) No order as to costs. Urgent Photostat certified copy of the judgment, if applied for, be handed over to the parties on compliance of necessary formalities.