Ayub Ansary vs Mehbub Gazi

Mir Dara Sheko, J.—The revisional application, being C.O. 1629 of 2014, has been directed by Ayub Ansary against order No.40 dated 29.04.14 passed by the learned Civil Judge, Junior Division, 3rd Court, Alipore in Misc. Case No. 2 of 2014, a proceeding being under Order 9, Rule 13 of the Code of Civil Procedure proposing to set aside the ex-parte decree passed against him and others in Title Suit No. 3505 of 2010 for eviction under the West Bengal Premises Tenancy Act, 1997.

Heard Mr. Hiranmoy Bhattacharya, learned advocate for the petitioner and Mrs. Sharmistha Ghosh Sharma, learned advocate for the opposite party nos. 1 and 2.

Perused the impugned order. Let a copy of the judgement of the Title Suit No. 3505 of 2010 initiated by the plaintiffs/ opposite party nos. 1 and 2 who will be called on hereafter only as opposite parties and a copy of the Title Appeal arising therefrom initiated only at the instance of the defendant no.2 of the suit/ proforma opposite party no.6 supplied by the learned advocate for the opposite party nos. 1 and 2 be kept with the record.

I find from the available fact that Siddique Ansary, who died on August 16, 2004, the father of the petitioner, vis-a-vis of all the 5 defendants of the suit, was a tenant in respect of the suit premises under the opposite party nos. 1 and 2. The suit was instituted for evicting the natural heirs of the deceased tenant beyond the stipulated period as laid down under section 2(g) of the West Bengal Premises Tenancy Act, 1997. The suit, being T.S. No.3505 of 2010, was filed for evicting those heirs from the suit premises and for recovery of khas possession. The said suit ended as a contested eviction decree against the defendant no.2 Mehmud Ansary, one of the sons of original tenant since it was decreed ex-parte against the rest, presumably for the reason that despite service of summons none of the other sons, including the present petitioner appeared in the suit.

Said eviction decree was tested in appeal being Title Appeal No. 89 of 2013 only at the instance of self-same defendant no.2 Mehmud Ansary, one of the brothers of the petitioners and said appeal was also dismissed affirming the decree of eviction directing the said defendant no.2 to deliver the possession of the suit premises within the stipulated period. That judgement of appeal was delivered on August 31st, 2013.

There being no other challenge as against the said judgement delivered in title appeal in respect of the suit premises, one of the other brothers Ayub Ansary, who was the defendant no.1 amongst 5 defendants in the suit, came up before the learned trial court with an application under Order 9, Rule 13 of the Code of Civil Procedure being Misc. Case No. 2 of 2014 for setting aside the judgement and decree delivered in the suit by the learned trial court against him ex-parte on the ground that summons were never served upon him and in that miscellaneous proceeding stay application was presented so that the opposite party nos. 1 and 2/plaintiffs of the suit could not proceed with the execution proceedings which was rejected, meaning thereby, prayer for stay was refused by the impugned order no.40 dated 29.4.2014.

Mr. Bhattacharya apprised that the said miscellaneous proceeding under Order 9, Rule 13 of the Code is in the stage of evidence. It is submitted that if stay be not granted then the miscellaneous proceeding would be infructuous.

Mrs. Sharmistha Ghosh Sharma, Learned Advocate for the opposite party nos. 1 and 2 apprised the Court about the chequered conduct of the petitioner and also invited attention of the Court about the relevant paragraphs even of the impugned application under Order 9, Rule 13 of the Code. From paragraph 3 of the petition it appears that the petitioner contended that due to paucity of accommodation he used to stay temporarily elsewhere and occasionally would visit his old parents and spend a few nights with them. In the following paragraphs 5 and 6 the petitioner alleged that there was no good relationship with his brothers and he was not entertained well by his brothers who used to live in the suit premises with their family members and he also contended that he used to contribute rent for payment to the landlord even after the death of his father. This is a rule of law that some orders of interlocutory nature, interim order of any nature, order of condoning delay so on and so forth are discretionary, of course which is exercised judiciously considering or weighing balance of convenience, inconvenience, prima facie nature and merit of the matter under consideration.

Admittedly when the status of the petitioner including his other brothers as natural heirs of their deceased father who was the original tenant in respect of the suit premises have been determined within the meaning of section 2(g) of the West Bengal Premises Tenancy Act, 1997 and when after completion of all formalities up to paper publication the proceeding of original suit ended up to first appeal in favour of the opposite party nos. 1 and 2 and thereby the opposite party nos. 1 and 2 have accrued so far valid and legal right to have an executable decree, the same cannot be stayed simply on the ground that miscellaneous case under Order 9, Rule 13 of the Code has been initiated and is pending and would be infructuous if its execution would not be stayed.

Learned court below taking note of all pros and cons in details in the impugned order and refusing to pass any order of stay in respect of the execution proceeding observed at the end "Furthermore, law provided for mechanism to address the grievance of the petitioner on successful establishment of his case". Perhaps Learned trial court indicated about enforcement of the provision under section 144 of the Code of Civil Procedure in the event of success of the petitioner of this case in getting the judgement and decree of eviction set aside. Therefore, after appeal a valid right so far when has been accrued in favour of the opposite party nos. 1 and 2 the same cannot be stayed on the plea that the proceeding under Order 9, Rule 13 of Code under reference would be infructuous, if it would not have been stayed.

Therefore, examining the impugned order I am of the view that the order of the learned Civil Judge, Junior Division, 3rd Court, Alipore refusing to grant order of stay in the matter of execution proceeding under reference does not suffer from any legal infirmity. Rather I appreciate that the judicial discretion has been judiciously exercised in the present fact and circumstances of the case which need not be interfered with in the revisional jurisdiction. The impugned order dated 29.04.2014 passed by the learned Civil Judge, Junior Division, 3rd Court, Alipore is hereby affirmed with direction only that though there is no more hindrance on its way to proceed with the pending execution proceeding relating to the decreetal premises within reasonable time as far as practicable, but equally he should be vigilant to make expeditious disposal of the Miscellaneous Case No.2 of 2014 pending at the stage of evidence before him.

Let a copy of this order be communicated to the learned court below for information and to act accordingly.

Interim order, if any, passed by this Court with regard to the pending execution proceeding relating to the decreetal premises is hereby vacated.

The revisional application, being C.O. 1629 of 2014, is dismissed.

No order as to costs.

Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.