JUDGMENT :

SHAMPA SARKAR, J.

1. This revisional application arises out of an order dated May 18, 2022, passed by the learned Civil Judge (Senior Division), 2nd Court at Alipore, South 24 Parganas, in Title Suit No. 65 of 2016.

2. By the order impugned, the learned Judge rejected the application under Order 12 Rule 6 read with Section 151 of the Code of Civil Procedure, filed by the petitioner. The petitioner is the plaintiff/landlord in the suit for eviction. The suit for eviction of a trespasser, in terms of Section 2 (g) of the West Bengal Premises Tenancy Act, 1997 was filed. The plaintiff contended that the defendants were trespassers as they did not have any right to remain in the premises after five years from the death of the original tenant.

3. An application for judgment on admission as per the averments made by the tenants/defendants in the written statement, was filed. The learned court was of the view that a trial was required as there was no clear and unequivocal admission in the written statement.

4. According to the petitioner, learned court below erred in coming to the conclusion that the defendant no. 2 being the widow of the original tenant, had the right to continue living in the subject premises, even after expiry of five years.

5. According to Mr. Banerjee, the defendant no. 2 was the widow of a deceased son of the original tenant and not the widow of the original tenant. Paragraphs 4, 6 and 11 of the written statement have been relied upon to demonstrate that the defendant no. 1 admitted that he was residing in the premises by devolution of the property from the original tenant. The defendant no. 1 and his brother Tulsi Ram (since deceased) became tenants in respect of the property in question. The suit was filed by suppressing the fact of devolution of tenancy.

6. It has been further emphasized by Mr. Banerjee that the defendant no. 1had admitted that up to April 2005, the rent receipts were granted in the name of the deceased father of the defendant. The said averments appear at paragraphs 4 and 5 of the written statement.

7. It has been averred that in May 2005, the plaintiff received money, but did not grant any receipt to the defendants.

8. Thus, according to Mr. Banerjee, the question of attorment of tenancy in favour of the heirs of the original tenant did not take place and a judgment on admission on the basis of averments made in the written statement, would lead to expeditious disposal of the proceedings. The fate of the suit is a foregone conclusion.

9. Mr. Banerjee, relied on the decision of a Co-ordinate Bench of this court in the matter of Shivani Properties Pvt. Ltd. vs. Rama Shankar Pandey and others , 2021 SCC Online Cal 4284 and in the matter of Mangalic Enterprise vs. Swapan Kumar Das and others , 2022 SCC Online Cal 2036.

10. Mr. Mitra, learned advocate appearing on behalf of the plaintiff/landlord submits that only when the parties are not at issue, can a judgment upon admission be filed.

11. In the present case, the defendant No. 1 filed a written statement denying the contentions of the plaintiff. The said defendant is contesting the suit. The defendants incurred expenses with regard to the maintenance of the property, installation of deep tubewell and payment of property tax. The question of passing a judgment upon admission did not arise.

12. Mr. Mitra relied on the decision of the Hon’ble Apex Court in the matter of Karan Kapoor vs. Madhuri Kumar , 2023 (1) Indian Civil Cases 875 (SC) .

13. According to Mr. Mitra, the admission has to be clear and categorical. The learned trial judge exercised discretion by not allowing the application under Order