Sushil Kumar Dey Biswas Vs. Anil Kumar Dey Biswas

Court: Supreme Court

Case No: Civil Appeal No. 10689 of 2014

Citation: 2014 SCC OnLine SC 964

Date of Judgement: December 03, 2014

Appellant: Sushil Kumar Dey Biswas

Respondent: Anil Kumar Dey Biswas

Bench:

• Hon’ble Justice T.S. Thakur
• Hon’ble Justice Adarsh Kumar Goel
• Hon’ble Justice R. Banumathi

Advocates representing Appellant: Advs. Ranjan Mukherjee, B.P. Yadav and Sarla Chandra

Advocates representing Respondent: Advs. Amit Kumar Singh and K. Enatoli Sema

Statutes Referred:

1. Code of Civil Procedure, 1908 (CPC) – Section 151
2. Specific Relief Act, 1963, Section 6
3. Evidence Act, 1872, Section 17 & 58

Cases Referred: Judgment and Order dated 05.08.2013 of the High Court of Calcutta in CO No. 718 of 201

Issue:

• Can delay in filing the application for restoration of possession can be the reason for declining relief?

Facts:

1. The Respondent filed a suit for eviction against the Appellants, seeking eviction of the Appellants in respect of one room, one bath and privy on the first floor of the property concerned and one room and one shop room on the ground floor of that property.
2. During the pendency of that suit, the Appellants filed an application under Section 151 of Civil Procedure Code before the trial court, seeking restoration of possession of the suit property on the ground that the Respondent forcibly dispossessed the Appellants from the shop room as well as from the first floor room (by chopping off the steps of the wooden staircase that led to the first floor room).
3. The trial court dismissed the said application on the ground that the restoration application was filed nearly seven months after the alleged dispossession.
4. Being aggrieved thereby, the Appellants approached the High Court by filing a revision petition, which was also dismissed. Hence, the present appeal.

Contentions by Appellant:

• The Appellant argued that in June, 2011 they were forcefully dispossessed from the shop room of the property without due process of law.
• The matter was informed for the first time to the local MP who requested the local police to look into the matter, but instead of making an enquiry, the Plaintiff again dispossessed the Defendants from the possession of the first floor room by chopping of the steps of the wooden stair case that leads to the first floor room.
• The rooms on the first floor and the shop room in the ground floor are in absolute occupation of the Defendant No.2 and the Defendant No.1 was in possession of the other room in the ground floor from wherein he was forcefully dispossessed in the year 2005.

Contentions by Respondent:

The Respondent contended that the Defendants have voluntarily vacated the premises and the Defendants have purchased a flat at Nadanagore, Belghoria and have left the suit property at their own will.

Obiter Dicta:

• The suit was filed for ejectment indicating thereby that at the time of filing the suit in the year 2004, the Defendants were in possession of the property.
• Application for restoration of possession of the room on the first floor and the shop room on the ground floor was rejected by the courts below merely on the ground of delay without going into the merits of rival contentions of both the parties in order to meet the ends of justice.
• Possession of the first floor along with staircase and the shop room on the ground floor should be restored to the appellants-defendants.
• Delay in filing the application for restoration of possession cannot be the reason for declining relief.

Judgement:

• In the result, impugned order of the High Court (Judgment and Order dated 05.08.2013 of the High Court of Calcutta in CO No. 718 of 2013) is set aside and the appeal is allowed.
• The Respondent-plaintiff is directed to restore the staircase and the possession of one room, one bath and privy on the first floor and shop room in the ground floor to the appellants-defendants within a period of six weeks from the date of receipt of copy of this order
• On failure to restore the possession, the Appellants-defendants are at liberty to approach the trial court which shall pass appropriate order for ensuring compliance with the direction of this Court.
• The Trial court is directed to expedite the trial of the Title Suit No.196/2004 and dispose of the same at an early date

Conclusion:

The Appellants approached the Supreme Court after the Trial Court and the High Court turned down their request for possession of the property on the grounds of delay. They contended that the Respondents forcefully evacuated the space by altering the space they used to live in. The Supreme Court allowed the appeal and held that delay in filing the application for restoration of possession cannot be the reason for declining relief

Further the Apex Court directed the Respondents to restore the staircase and the room for the Appellant’s possession.

Edited By: Tanvi Mahajan, Publisher, Law Insider

Published On: February 12, 2022 at 23:30 IST