Decided on June 22,1983

G C BARRET Respondents


- (1.) THIS application arises out of a judgment and order passed by the learned Judge, Second Bench, Small causes Court, allowing an application for a new trial on contest. The petitioner (the plaintiff) instituted the suit being Suit No. 1213 of 1970 before the Second Bench of the small Causes Court at Calcutta for eviction of the tenant from the said premises on the ground that the registered lease dated 15th August, 1853 expired by efflux of time on 14th of August, 1969.
(2.) SUMMONS that was sent to the opposite party no. 1 came back, with the report "unwilling to take delivery". Thereafter, the summons was again served by registered post and came with the postal remark 'refused' on 12th June, 1970. On 23rd june, 1970 the suit was decreed ex pane and possession was given on 31st July, 1970 by police help. On 4th August, 1970 an application under Order 9 Rule 13 of the Code of Civil Procedure was filed by the opposite party no. 1. It is the case of the plaintiff that the opposite party took certain amount of money from the petitioner for giving up possession of the premises and granted receipt therefore which has been marked 'a' to the present petition. The plaintiff's case is that there was an agreement by and between the landlord and the tenant In consideration of payment of certain amount of money that the tenant would abandon the possession of the said premises and the landlord sought leave during the hearing of the application to be allowed to cross-examine the tenant on that point and that prayer was rejected by the Judge of the Small Causes Court and the matter came up before Mr. Justice Sinha in revision and His Lordship directed that the landlord would be allowed to cross-examine the tenant on that agreement and remanded the matter to the Court of Small Causes to deal with it as per the direction given by his Lordship.
(3.) ON 20th March, 1983 the application under Order 9 Rule 13 which was sent back by Sinha, J: was rejected by the Court of Small Causes.;

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