N.S. Sil, J. - (1.) This is to consider a revisional application under Section 115 of the Civil Procedure Code arising out of an order No. 28 dated 7.2.1995 passed by Sri A.K. Mukherjee, learned Assistant District Judge, 2nd Court, Hooghly in connection with Title Appeal No. 8 of 1992 allowing the petition of the O.P. permitting the P. W.1 Paresh Chandra Saha to be examined on the points given in the petition dated 22.4.1994.
(2.) It is stated in the revisional application that the petitioner took a tenancy from Sri Amar Nath Ghosh, the then owner and thereafter the petitioner made a construction at his own cost and since then the petitioner has been carrying on manufacturing business of wooden furniture. It is also stated that the O.P. some time in 1979 purchased the said plot of land from the original owner Amarnath Ghosh and thereafter the petitioner started paying monthly rent in respect of the said premises and paid rents upto the month of May, 1985. But, thereafter the O.P. refused to take the rents from the petitioner and finding no other alternative the petitioner sent the monthly rents from June, 1985 to November 1985 by postal money order to the O.P. The petitioner also remitted the rent for the month of December by postal money order but the O.P.'s refused to accept the same and thereafter filed the Title Suit being T.S. No. 173 of 1986 for decree of khas possession and eviction of the revisionist from the suit premises and for other reliefs. The revisionist contested the suit and the learned Trial Court was pleased to dismiss the suit on 18.12.1991. Thereafter, the plaintiff/O.P. filed the appeal being Title Appeal No. 8 of 1994 and the revisiohist also appeared in the said Appeal. In the said appeal the O.P. appellant filed an application under Order 41 Rule 27 of the Civil Procedure Code for adducing evidence which was also contested by the revisionist. The appellant in the said application waned to examine the P.W.1 on the following issues : "(a) Who drafted the Notice under section 106 of the Transfer of Property Act? (b) Who typed and in which paper it was typed? (c) Have you seen when it was typed? (d) Who signed the notice under section 106 of the Transfer of Property Act? (e) Who prepared for posting the notice? (f) Where it was posted? (g) Have you read the eviction notice?" It is stated in the revisional application that the P.W. 1 in his deposition before the trial Court had categorically answered all the questions stated above. The learned lower appellate Court fixed 1.2.1995 for hearing of the appeal and also petition under Order 41 Rule 27 of the Civil Procedure Code. The O.P/plaintiff did not press the application under Order 41 Rule 27 of the Civil Procedure Code but the petition for recalling the P.W. 1 and the appeal were heard by the lower appellate Court and the lower appellate Court was pleased to pass an order allowing the petition for recalling, the P.W. 1 to depose on the questions mentioned in that application. And being aggrieved and dissatisfied with that order the present revisional application was filed.
(3.) Mr. S.P. Sharma, the learned Advocate appearing for the revisionist/defendant submits before me that the impugned order dated 7.2.1995 is as regards the two petitions dated 22.4.1994 and 7.2.1995. It is pointed out by Mr. Sharma that after the filing of the present revisional application before this Court, this Court was pleased to pass a stay order as regards the proceeding of the appeal pending before the appellate Court but the appellate Court had disposed of the appeal during the pendency of this revisional application and subsistence of the stay order passed by this Court. It is pointed out by Mr. Sharma that in both the applications dated 22.4.1994 and 7.2.1995 the similar grounds were taken by the plaintiff that due to some mistake the learned Advocate for the plaintiff could not take some points from the P.W. 1 during his examination before the Trial Court. Mr. Sharma has further submitted before me that the Trial Court was pleased to dismiss the suit on one of the grounds that the service of notice was not made properly and this lacuna had been filled in if the P.W. 1 is permitted to be examined further by the lower appellate Court. It is also pointed out by Mr. Sharma that from the deposition of the P.W 1. it appears that some of the matters appearing in the schedules to those two petitions were already in the evidence of the P.W.1.;