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2016 Supreme(Cal) 351
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Jyotirmay Bhattacharya and Ishan Chandra Das, JJ.
Jugal Kishore Mondal & Anr. - Appellants
Vs.
Bikash Ranjan Chandra - Respondents
R.V.W 292 of 2014 With CAN 11817 of 2014 And CAN 11816 of 2014 In F.A 608 of 1964 With CAN 12538 of 2014 With CAN 8607 of 2015 With CAN 3946, 3947, 7610 With COT 3739 of 1968
Decided On : 04-08-2016
For the Review Applicants : Mr. Saktinath Mukherjee, Mr. Aniruddha Chatterjee, Mr. Surya Prasad Chattopadhyay.
For the Appellants/O.P : Mr. Sarvapriya Mukherjee, Mr. Jishnu Chowdhury, Mr. Saunak Mitra, Mr. Arnab Sardar.
For the applicant in CAN 12538/2014 : Mr. Jiban Ratan Chatterjee, Mr. Ayan Banerjee, Ms. Dabasree Dhamali.
The relationship of landlord and tenant between the plaintiff and the defendant ceased to operate with effect from 1st of Baishak, 1363 B.S. equivalent to 14th April, 1956.
Headnote:
LANDLORD AND TENANT - Non-agricultural tenancy - Expiry of lease - Suit for eviction - Non-agricultural tenant acquired non-evictable right under Section 7(5) of the West Bengal Non-Agricultural Tenancy Act - Appeal against dismissal of suit - Abatement of appeal on death of respondent - Application for substitution of legal representatives - Delay in filing application - Condonation of delay - Review of order condoning delay - Maintainability.
Fact of the Case:
A non-agricultural tenancy was granted in 1935 for a period of 20 years with permission to erect permanent structure thereon. The lessee constructed a pucca cinema hall on the demised land. The original lessor died in 1937 leaving behind three sons. The original lessee died in 1941 leaving behind three sons. The lease expired in 1955. Since the lessee did not vacate the suit premises, a suit for eviction was filed against the heirs of the original lessee in 1959. The suit was dismissed in 1963 holding that the lessee acquired a non-evictable right under Section 7(5) of the West Bengal Non-Agricultural Tenancy Act. The plaintiff filed an appeal. During pendency of the appeal, the respondent died in 1975 leaving behind his widow as his only heiress. No step was taken for substituting the legal heirs of the deceased respondent within the period of limitation. The appeal was dismissed for abatement on the death of the respondent. Subsequently, the other brother of the deceased respondent died in 1999. The appellants filed an application for substitution for bringing the legal representatives of the deceased respondents on record after setting aside abatement on condonation of delay. The application was allowed. Some of the appellants also died during the pendency of the appeal. The appellants filed applications for substituting the heirs of the deceased appellants. All those applications were dismissed as no reasonable explanation was given for such long delay in taking steps for substituting the legal representatives of those three deceased persons. The appellants filed an application for recall of the order passed by the Division Bench of this Court on 5th February, 2009. The application for condonation of delay was also filed by the appellants. The appellants stated that their learned Advocate died on 30th December, 2008; as a result, the appellants remained unrepresented before the Division Bench of this Court when the appellants’ those three applications were dismissed by the said Division Bench of this Court on 5th February, 2009. The Division Bench allowed the application for recall by setting aside the order dated 5th February, 2009 after recording that the appellants were prevented by sufficient cause from appearing before the Court when the ex parte order dated 5th February, 2009 was passed. The respondents/petitioners filed a Special Leave Petition being SLP(Civil) 6751-6752 of 2014 before the Hon’ble Supreme Court. The said Special Leave Petition was, however, dismissed as withdrawn. The Hon’ble Supreme Court after considering the facts of this case, clarified that in the event of the petitioner’s failing in the High Court, it would be open to the petitioners to approach this Court even for challenging the order which was challenged in the said Special Leave Petition. The Hon’ble Supreme Court also expressed its desire for disposal of the said matter by the High Court as soon as possible. The review application has been filed along with an application for condonation of delay.
Finding of the Court:
The Division Bench of this Court erred in condoning the delay of four and half years in filing the application for recall by the appellants. The appellants failed to satisfactorily explain the reason for the delay in filing the application for recall. The order under review passed by the Division Bench on 7th May, 2013 is also required to be recalled as no step was taken by the appellant for bringing the heirs of Ashokbabu on record by way of substitution. The instant appeal has now become infractuous as the relationship of landlord and tenant between the plaintiff and the defendant ceased to operate with effect from 1st of Baishak, 1363 B.S. equivalent to 14th April, 1956.
Issues: 1. Whether the Division Bench erred in condoning the delay of four and half years in filing the application for recall by the appellants? 2. Whether the appellants satisfactorily explained the reason for the delay in filing the application for recall? 3. Whether the order under review passed by the Division Bench on 7th May, 2013 is required to be recalled? 4. Whether the instant appeal has become infractuous?
Ratio Decidendi: 1. The Division Bench erred in condoning the delay of four and half years in filing the application for recall by the appellants as the appellants failed to satisfactorily explain the reason for the delay in filing the application for recall. 2. The appellants failed to satisfactorily explain the reason for the delay in filing the application for recall as they merely stated that they were ignorant about the order passed by the other Division Bench of this Court on 5th February, 2009. However, the appellants in their written statement filed in another suit categorically mentioned that the appeal preferred by Mondal’s was dismissed on contest on 5th February, 2009. 3. The order under review passed by the Division Bench on 7th May, 2013 is required to be recalled as no step was taken by the appellant for bringing the heirs of Ashokbabu on record by way of substitution. 4. The instant appeal has become infractuous as the relationship of landlord and tenant between the plaintiff and the defendant ceased to operate with effect from 1st of Baishak, 1363 B.S. equivalent to 14th April, 1956.
Final Decision: The review application and the application for condonation of delay are disposed of. The application for stay filed in connection with the review application is also disposed of. The application filed by one of the heirs of Ashokbabu praying for recall of the order under review passed by the Division Bench on 7th May, 2013 is allowed. The appeal is dismissed.
Jyotirmay Bhattacharya, J.
1. Several applications were filed by the parties in this abated appeal.
2. Before dealing with the merit of those applications, I feel it necessary to give some background of this litigation for proper appreciation of the context in which those applications were filed.
3. Accordingly I record hereinafter the short background of this litigation.
4. On 30th May, 1935 a non-agricultural tenancy was granted by the Remesh Chandra Mondal in favour of the predecessor-in-interest of the appellant viz. Goursiddhi Chandra in respect of the suit property for a period of 20 years with permission to erect permanent structure thereon. The original lessee constructed a pucca cinema hall on the demised land. The original lessor viz. Ramesh Chandra Mondal died in the year 1937 leaving behind him his three sons, viz. Jagadindra Kumar Mondal, Manindra Mondal and Dinendra Kumar Mondal. The original lessee, viz. Goursiddhi Chandra died in 1941 leaving behind him his three sons, viz. Sanat Chandra, Bikash Ranjan Chandra and Ashok Kumar Chandra.
5. The lease executed on 30th May 1935 expired on 30th May, 1955 by efflux of time. Since after the expiry of the lease period, the successor of the original lessee did not vacate the suit premises, a suit for eviction was filed against the heirs of the original lessee, viz. Sanat and his two brothers on 27th May, 1959. The said suit was dismissed on contest on 30th March, 1963 by the learned Trial Judge by holding, inter alia, that since the lessee had erected construction of permanent nature on the suit property on the basis of the permission granted to him by the lessor in the said lease deed, the lessee acquired a non-evictable right under Section 7(5) of the West Bengal Non-Agricultural Tenancy Act.
6. Challenging the said decree passed by the learned Trial Court, the plaintiff filed an appeal before this Court. During pendency of the said appeal, the respondent No.1, viz. Sanat Kumar Chandra died on 4th August, 1975 leaving behind his widow, viz. Maya as his only heiresses. No step was taken for substituting the legal heirs of the said Sanat by the appellant within the period of limitation. As a result, when the death of Sanatbabu was reported to the Court, this Court passed an order for dismissal of the appeal after recording abatement thereof on the death of Sanat as no step was taken by the appellant for bringing his legal representatives on record within time.
7. Subsequently, the other brother of Sanatbabu viz. Ashokbabu died in the year 1999. It is only when pursuant to an order passed by this Court the names of the legal heirs and heiresses of the said Sanatbabu and Ashokbabu were supplied to the learned advocate on record of the appellants, the appellant filed an application for substitution for bringing the legal representatives of the said Sanatbabu and Ashokbabu on record after setting aside abatement on condonation of delay. The said application was registered as CAN 7610 of 2008.
8. Some of the appellants also died during the pendency of this appeal. Let us now give the details of the death of these appellants who died during the pendency of this appeal. The plaintiff/appellant No. 1, viz. Jagadindrababu died on 25th September, 1972 leaving behind his two sons, viz. Jugal and Nitai and one daughter, viz. Nanibala and his widow Amiya. The heirs of Jagadindrababu were substituted in his place after his death. One of such substituted heirs, viz. Jugalbabu died on 16th August, 1984 leaving behind his son Ashim and daughter, viz. Protima and his widow Sumita. Jugal’s son Ashim died sometime in the year 2006. Two applications were taken out by the appellants in 2008 for substituting the heirs of Jugalbabu and Ashimbabu in their places. The application which was taken out by the appellants for substituting the heirs of Jugalbabu after setting aside abatement was registered as CAN 3947 of 2008. The other application which was filed by the appellant for substituting th
