1. This application is at the instance of the plaintiff and is directed against the order dated February 6, 2010 passed by the learned Chief Judge, Presidency Small Cause Court, Calcutta in S.C.C. Suit No.159 of 2007 thereby allowing an application dated January 14, 2010 filed by the judgment debtor.
2. The plaintiff / petitioner herein instituted the said suit against the opposite party under Section 41 of the Presidency Small Cause Court, Calcutta praying for recovery of possession of the premises-in-suit as described in schedule of the plaint. The opposite party, brother of the plaintiff was allowed to stay in the suit premises as a licensee and upon revocation of the license, he failed to deliver possession of the demised premises in favour of the plaintiff and so, the application under Section 41 of the said Act was filed.
3. The opposite party entered an appearance in the said suit and filed his written statement denying the material allegations made in the plaint. The said application under Section 41 of the said Act was allowed directing the bailiff to deliver possession to the plaintiff by evicting the defendant from the premises-in-suit. Thereafter, the opposite party filed a regular suit being Title Suit No.3458 of 2009 praying for declaration that the order passed by the learned Chief Judge, Presidency Small Causes Court, Calcutta is not legal, valid and binding upon the plaintiff and other reliefs.
4. He filed an application for temporary injunction praying for restraining the petitioner from executing the order passed by the Presidency Small Causes Court. Upon hearing both the sides over an application of stay of the proceedings of the Ejectment Case No.159 of 2007, the learned Chief Judge, Presidency Small Causes Court, Calcutta passed the impugned order allowing the application by directing the opposite party to furnish a bond of Rs.10,000/- with to sureties of Rs.5,000/- each. Thereafter, the order of stay will be passed.
5. Being aggrieved, this application has been preferred. Upon hearing the learned advocate for the petitioner and on going through the materials on record, I am of the view that the order impugned cannot be supported. The impugned order had been passed without jurisdiction inasmuch as the S.C.C. Suit No.159 of 2007 was nonest on the date of passing the impugned order. The learned Chief Judge, Presidency Small Causes Court was within his competence to pass appropriate orders of delivery of possession under Section 41 of the Presidency Small Causes Court Act, Calcutta upon giving due opportunity to the opposite party.
6. The said S.C.C. Suit No.159 of 2007 was disposed of on contest on March 26, 2009 directing the opposite party to vacate the premises in suit within 2 months from the date of passing order. Thereafter, the opposite party filed a regular title suit being Title Suit No.3458 of 2009 against the plaintiff and one Achinta Dutta before the City Civil Court, Calcutta. He also filed an application for temporary injunction restraining the plaintiff from executing the order dated March 26, 2009 that application for temporary injunction is still pending.
7. Then the application dated January 14, 2010 for stay was filed long after the disposal of the said S.C.C. Suit No.159 of 2007. This application was considered and allowed in the said disposed S.C.C. case when the other regular suit and the application for temporary injunction were pending for disposal. Section 47 of the Presidency Small Causes Courts Act lays down the provisions for stay if within a period of 21 days from the date of service of notice under Section 42 of the said Act or from the date of knowledge of the proceedings under Section 41 of the said Act, the defendant takes appropriate steps, the Court shall make an order staying the proceedings on the application for stay, upon execution of a bond as the court thinks reasonable, till such suit is disposed of.
8. So, the essential ingredients of Section 47 of the said Act have not been fulfilled. Therefore, the learned Trial Judge has committed errors of law in passing the impugned order conditionally long time after disposal of the proceeding under Section 41 of the said Act. The impugned order, therefore, cannot be sustained. The revisional application succeeds. It is, therefore, allowed. The impugned order is hereby set aside.
9. Urgent Xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.