- (1.) C.A.N. No. 10265 of 2011 1. This is an application filed by the appellant/tenant praying for stay of this Second Appeal till disposal of Misc. Case No. 26 of 2010 pending before the Thika Controller, Kolkata. It is further case that in terms of the Kolkata Thika Tenancy (Acquisition and Regulation) Act, 1981 the interest of the respondent landlord vested to the State and the petitioner became direct tenant under the State and started to pay monthly rent to the State Government since August, 1982 after stopping any such payment to the respondent erstwhile landlord. It is further case that respondent filed a suit on and about 6th December, 1999 against the present appellant with a prayer for a decree of recovery of vacant khas possession, arrear rent, mesne profit etc. in respect of the land which was leased out during the year' 1969 and the lease period expired long back. During pendency of the suit the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 came into force with effect from 1st of March, 2003. In terms of said Act of 2001 Thika Controller had the power to decide any question as to whether a person is a thika tenant or not Vide section 5(3) of said Act and the jurisdiction of the Civil Court was also barred under section 21 of the Act relating to matters which were required to be decided or dealt with by the Controller under said Act. However, ignoring said specific defence plea learned Trial Court passed a decree of eviction against this petitioner/tenant. It is further case that during the pendency of the appeal preferred by the tenant in the Lower Appellate Court being Title Appeal No. 280 of 2008, the Thika Controller, Kolkata initiated proceeding being Misc. Case No. 26 of 2010 under section 5(3) of said Act of 2001 for determining the question as to whether the appellant tenant is a thika tenant or not. As the relevant provisions of said Act of 2001 were applicable to all pending proceedings when the Act came into force with effect from 1st of March, 2003, Learned Lower Appellate Court should have stayed the appeal but unfortunately learned Lower Appellate Court also dismissed the appeal confirming the order of eviction passed by learned Trial Court. As this second appeal is nothing but the continuation of the suit between the parties it is required to be stayed till disposal of said proceeding being Misc. Case No, 26 of 2010 pending before the Thika Controller. During hearing Mr. P.K. Das, learned advocate for the appellant/petitioner, referred an unreported judgment of this Court passed on 25th April, 2011 in connection with CAN No 5507 of 2010 wherein learned Judge of this Court under similar circumstances stayed the pending second appeal in view of pendency of a proceeding before the Thika Controller. The respondent/O.P./landlord, on the other hand, has filed an affidavit-in-opposition stating that either the Act of 1999 or the Act of 2001 had any application in this case as both the Courts came to concurrent findings of fact that the appellant was not a thika tenant. It is further submitted that against said order dated 25th April, 2011 passed by learned Single Judge in connection with CAN No. 5507 of 2010 the opposite party moved Hon'ble Apex Court being special leave to appeal (Civil No. 16135) of 2011 wherein Hon'ble Apex Court set aside the order of stay dated 25 of April, 2011 with a direction to proceed with the second appeal in accordance with law with some other directions.
(2.) In reply Mr. P.K. Das, learned senior counsel, submits that it was not within his knowledge that said order dated 25th of April, 2011 passed by learned Single Judge in connection with CAN No. 5507 of 2010 was set aside by the Hon'ble Apex Court and accordingly he wants to withdraw this application being CAN No. 10265 of 2011.
(3.) In view of said submission of Mr. Das Jet this application being CAN No. 10265 of 2011 be dismissed for being not pressed. C.A.N. No. 6530 of 2010;