Prasenjit Mandal, J. - (1.) THIS application is at the instance of the defendant no.1(kha) and is directed against the order no.221 dated December 19, 2006 and the order no.226 dated April 18, 2007 both passed by the learned Civil Judge (Junior Division), First Court, Midnapore(West) in other Suit No.1 of 1995.
(2.) THE short fact is that the plaintiffs/opposite parties herein instituted the Other Suit No.1 of 1995 in the Court of the learned Munsif, First Court, Midnapore against the predecessor-in-interest of the petitioner praying for a decree of eviction, for recovery of possession and other reliefs. THE predecessor-in-interest of the petitioner entered appearance in the suit and he was contesting the said suit by filing a written statement denying, inter alia, all the materials averments made in the plaint. On October 23, 1998, the original defendant executed a deed of agreement to the effect that after his demise, the petitioner, being his third son, would carry on his business in the name and style of Sitala Cotton Stores upon payment of rent in favour of the landlord and also other taxes to the Government and that his other legal heirs would have no objection to the same. Subsequently, the father of the petitioner died and the petitioner prayed for substitution in place of the original defendant. The petitioner also filed an application praying for permission to deposit the arrears of rent amounting to Rs.1,760/-. The plaintiffs/opposite parties herein filed their objection to the said application. By the order dated December 19, 2006 the learned Trial Judge recalled the order dated March 8, 2006 and by the order dated April 18, 2007, the learned Trial Judge rejected the said application. Being aggrieved, this application has been preferred. Now, the point for consideration is whether the impugned orders should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that there is no dispute that the original defendant was a tenant under the plaintiffs in respect of the premises in suit, as described in the plaint. The contention of the petitioner is that by an agreement dated October 23, 1998, his father assigned the premises in suit to him alone and the other heirs have no objection to the said arrangement and so the petitioner alone should be treated as tenant in respect of the premises in suit. It appears from the materials on record that the petitioner sought for permission to deposit the arrears of rent in his individual capacity, though there are other heirs after the death of the original defendant.
(3.) IN fact, the order dated March 8, 2006 was passed in favour of the defendant no.1(kha)/petitioner without hearing the plaintiffs. For that reason, the learned Trial Judge by the impugned order dated December 19, 2006 gave an opportunity to the plaintiffs to revive their submission again holding that any mistake committed by the Court either inadvertently or any misrepresentation of facts by any of the parties should be rectified. The fact remains that after the death of the original defendant, his heirs have been substituted. The tenancy right is heritable. For that reasons, the learned Trial Judge has recalled the order dated March 8, 2006 by the impugned order dated December 19, 2006 for giving a fresh hearing. If fresh hearing is given, the present petitioner has nothing to loose and so, there is no question of suffering any prejudice by him. This being the position, in consideration of the heritable right of a tenancy, I am of the view that the learned Trial Judge was justified in recalling the order dated March 8, 2006. So, there is no scope of interference with the impugned order dated December 19, 2006.;