- (1.) THIS is a revisional application under Article 227 of the Constitution of india against the judgment and order dated December 16,2005 passed by the learned Civil Judge (Senior Division) at Sealdah in Misc. Appeal No. 7 of 2005 reversing Order No. 17 dated February 15,2005 passed by the learned Civil judge (Junior Division), Second Court at Sealdah in Title Suit No. 117 of 2004.
(2.) THE brief facts leading to filing of this revisional application are as follows:- (a) The plaintiff, 54 Block Congress Committee, on April 17, 2004, institutes the said suit in the Court of the learned Civil Judge (Junior Division), Second Court at Sealdah against Shyamal Das, inter alia, for permanent injunction In the said suit the plaintiff alleges that the plaintiff is a lawful tenant under the said defendant in respect of one big hall with right of user of common bath and privy and of the entire open space, at a monthly rental of Rs. 200/- (Rupees two hundred)only payable according to English Calendar; the plaintiff is running the office of 54 Block Congress Committee and, also, the office of the west Bengal Pradesh Kisan Congress. As there was cordial relationship between the parties, the defendant never granted rent receipt to the plaintiff; on and from April 5, 2004 the defendant constantly starts creating pressure upon the plaintiff to vacate the suit property; on april 13, 2004 at about 10. 30 a. m. the defendant, along with some unknown persons, tried to take possession of the suit property by force, but due to interference of. some local people, the defendant was not successful in doing so. Therefore, the said suit was filed, inter alia, seeking a decree for permanent injunction against the defendant and his men and agents restraining them from making over possession of the suit property to any third party and from causing any interference with peaceful and lawful enjoyment of tenancy by the plaintiff in the suit premises. (b) After institution of the said suit, the plaintiff filed an application for temporary injunction under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure praying for an order of temporary injunction restraining the defendant from making over possession of the suit property to any third party and from causing any interference and from dispossessing the plaintiff from the suit premises without due course of law. (c) The learned Trial Judge by Order No. 3 dated April 19, 2004 refused to grant any exparre ad interim order of injunction in favour of the plaintiff at that stage. (d) The defendant, however, applied for local inspection under order 39, Rule 7 read with Section 151 of the Code of Civil Procedure in the aid of the hearing of the application for temporarily injunction. The learned Trial Judge by Order No. 6 dated May 5, 2004 allowed the said application for local inspection filed by the defendant and appointed shri Shyamal Bose, learned Advocate as the commissioner for local inspection. (e) The learned Commissioner held local inspection and submitted his report dated May 21,2004. In his report the learned Commissioner, inter alia, observes that he notices that the,suit property is kept under lock and key and the defendant opens padlock of the room He, also, records that the room is under repair. He notices one big size iron gate along with the cut out fixed on the eastern side of the wall leading towards road side. He, also, notices a small size grill gate on the extreme southeast corner of the premises, but the grill gate is fixed by welding and it cannot be opened for egress and ingress. He notes the submission of the learned advocate for the defendant that there is nothing significant to note that the plaintiff had any kind"of possession in any portion of the suit property. (f) On May 18, 2004 the defendant filed an application for mandatory injunction under Section 151 of the Code of Civil Procedure for restoration of possession. The defendant alleged that, after the local inspection/on May 16, 2004 at about 12. 30 noon about 60 to 70 people arrived at the suit property and trespassed by force and dispossessed the defendant by breaking the padlock of the main entrance gate. The main entrance gate was locked from inside and the trespasser entered inside the premises by scaling the boundary wall and broke the padlock by using hammer. (g) The plaintiff contested the said application for restoration of possession by denying the allegations made in the said application. (h) The learned Trialjudge by Order No. 17 dated February 15, 2005 allows the said application filed by the defendant, on contest, holding, inter alia, that the plaintiff had no possession or right of possession in respect of the suit property, but the plaintiff trespassed by force and violence dispossessing the defendant by breaking the padlock of the main entrance of the suit premises. The learned Judge, therefore, directs restoration of possession in favour of the defendant within twenty days from the date of the order failing which liberty is granted to the defendant to obtain restoration of possession in accordance with law. The learned Trial Judge in passing the said order heavily relies upon the report submitted by the learned Advocate Commissioner. (i) The plaintiff being aggrieved preferred an appeal, which was registered as Misc. Appeal No. 7 of 2005 before the learned Civil Judge (Senior Division) at Sealdah. (j) The learned Judge in the Lower Appellate Court, however, by judgment and order dated December 16, 2005 allows the said appeal and sets aside the Order No. 17 dated February 15, 2005 passed by the learned Trial Judge. Consequently, the application filed by the defendant for restoration of possession is rejected. (k) The learned Judge in the Lower Appellate Court holds that the defendant is yet to file his written statement in the suit; therefore, in substance there was no claim, leave aside any counter-claim, of the defendant seeking recovery of possession. The documents produced by the plaintiff, prima facie, shows that the plaintiff has been using the address of the suit premises since long in print. The learned Judge notices that even the report of the local inspection Commissioner shows there are cut outs near main gate although the learned commissioner does not elaborate as to the particulars of those cut outs, whether belonging to defendantor not. (l) Being aggrieved the defendant has come up with this application under Article 227 of the Constitution of India.
(3.) AN affidavit of service was filed, but the postal article addressed to the plaintiff/opposite party came back with the postal endorsement 'not claimed'. By my order dated March 23, 2006, I directed the petitioner/ defendant to serve a copy of this revisional application on the learned advocate appearing for the plaintiff/opposite party in the Court below, by registered post wilh acknowledgement due. An affidavit of service is filed showing service of notice of the revisional application on the learned Advocate for the plaintiff/opposite party, namely, Shri Kalidas Sarkar, by speed post with acknowledgement due. In spite of such service, none appears for the opposite party.;