Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 874 (CAL)

Amal Krishna Banik v. Swapan Kumar Daw

2010-07-28

KANCHAN CHAKRABORTY

body2010
Judgment :- Kanchan Chakraborty, J: 1) The challenge in this revision application is to the order dated 26.7.2006 passed by the learned Judge, IInd Bench, City Civil Court, Calcutta in Title Suit No. 799 of 2003 whereby the prayer for repairing of the suit premises was allowed in part. 2) This revision application is filed at the instance of the plaintiff (hereinafter referred to as the petitioner) Amal Krishna Banik who instituted the suit being no. 799 of 2003 praying for the following reliefs : a) A declaration that he is a tenant in respect of the suit premises under the defendants at a monthly rental of Rs. 190/-. b) For permanent injunction restraining the defendant (hereinafter referred to as the Opposite parties) to cause any inconvenience and/or obstruction and/or interference to the peaceful user of the suit premises along with roof , eastern side open space and tap water connection situated on the Eastern side of the suit premises. c) Any other reliefs the plaintiff is entitled to. 3) The petitioner filed an application in the learned Trial Court and sought for permission of the Court to repair the collapsible gate at the entrance of the suit premises, electric light fixed in the outer wall just above the collapsible gate at the entrance, windows of the kitchen and southern side room of the suit property, the bathroom door etc. A local inspection was also prayed for and was, in fact, held to ascertain the condition of the above mentioned properties in the suit premises. The prayer for repairing was opposed by the opposite parties. The matter was taken up for hearing by the learned Judge on 26.7.2006. Upon hearing of both the parties the learned Judge pass the following order. Or. No. 38 dt. 26.7.06 “Both parties are present by filing their respective haziras. Defdts have filed W.O. against the application U/s. 151 C.P.C. filed by the plff. After supplying copy of the same to the other side. Let the same be kept with the record. The hearing arises out of an application dt. 28.6.06 U/s. 151 C.P.C. filed by the plff. Praying for seeking permission to repair the suit premises on the ground stated therein. Perused the present application. Hd. The Ld. Lawyer. Considered. I have also perused the W.O against the instant application. Although defdts filed written objection against the instant application dt. The hearing arises out of an application dt. 28.6.06 U/s. 151 C.P.C. filed by the plff. Praying for seeking permission to repair the suit premises on the ground stated therein. Perused the present application. Hd. The Ld. Lawyer. Considered. I have also perused the W.O against the instant application. Although defdts filed written objection against the instant application dt. 28.6.06 U/s 151 C.P.C. filed by the plff. praying for seeking permission to repair the suit premises but at the time of hearing Ld. Lawyer on behalf of the defts. frankly submitted before this court that the defdts have no any objection if permission is given to the plff. to repair the suit premises in respect of point nos. 2,3,4 and 5 as mentioned in the application itself. Considering this aspect the plff. is permitted to repair the broken electric light on the outer wall at the entrance, broken windows in the kitchen and southern side room of the suit property, broken door of the bath room and to repair the washing basin as mentioned in the application itself at his own cost. It is to be noted here that no permission is given to the plff. to refix collapsible gate in the three sides of the outer wall at the entrance of the suit property as state by him. The application dt. 28.6.06 U/s 151 C.P.C. filed by the plff. is thus disposed of. Fix 14.9.2006 for P.hearing of the instant suit Dict. & corrected by me Sd/- P.K. Chakraborty Judge 26.7.06” 4) Being dissatisfied with and aggrieved by the above order passed by the learned Judge, this revision application has been filed by the petitioner on the ground that the learned Court failed to appreciate the factual aspect and requirement of repairing of the suit premises by the petitioner and came to an incorrect findings by not allowing his entire prayer including the repairing of the collapsible gate at the entrance. 5) Mr. J. N. Chatterjee, the learned Advocate appearing on behalf of the petitioner contended that the order, on the fact of it, is lacking propriety and fairness. 6) Mr. Chatterjee further contended that the learned Court ought to have considered the requirement of the petitioner for repairing the suit premises badly especially the collapsible gate at entrance. 5) Mr. J. N. Chatterjee, the learned Advocate appearing on behalf of the petitioner contended that the order, on the fact of it, is lacking propriety and fairness. 6) Mr. Chatterjee further contended that the learned Court ought to have considered the requirement of the petitioner for repairing the suit premises badly especially the collapsible gate at entrance. He has drawn attention of this Court to the report of the local inspection held upon direction of the learned Court and submitted that the report indicates clearly that their existed a collapsible gate at the entrance which was found broken at the time of inspection. Therefore, he contended, there was no reason at all for the learned Court for disallowing his prayer for refixing the collapsible gate at the entrance while it allowed the other repairing works sought to be done. 7) Mr. Chatterjee also contended that no reason, whatsoever, has been assigned by the learned Court for disallowing that portion of the prayer. 8) On perusal of the materials on record, it appears that the petitioner is in possession of the suit premises. This appeared to be an admitted fact. Whether he is a licensee/trespasser or a tenant is a question of fact as well as an issue in the suit to be determined by the Court after taking evidence. The petitioner being occupier of the suit premises filed the application praying for repairing of damages caused to the suit flat. The learned Court allowed his prayer for repairing only to the extent which was not opposed by the opposite parties. The order of the learned Court quoted earlier makes it clear that it allowed repairing in respect of item no. 2,3,4 and 5 simply because the learned Lawyer appeared on behalf of the opposite parties did not raise any objection to such prayer. The item no. 1 i.e. refixing of the collapsible gate at the entrance of the suit flat was not allowed. The learned Court has neither considered that prayer nor shown any reason for disallowing that prayer most whimsically as if allowing or rejecting of such a prayer was entirely dependent on the desire of the opposite parties. The order passed by the learned Court is clear enough to indicate that it did not address to that issue at all. The learned Court has neither considered that prayer nor shown any reason for disallowing that prayer most whimsically as if allowing or rejecting of such a prayer was entirely dependent on the desire of the opposite parties. The order passed by the learned Court is clear enough to indicate that it did not address to that issue at all. It is not understood as to why the learned Court refrained from considering that point although the complete report of local inspection was placed before him. The order impugned not being a reasoned order at all cannot and should not be allowed to be kept alive. The minimum expectation of the litigants is that a Court of law is to pass a reasonable and just order – may be right or wrong. A Court of law is not supposed to pass any order in caprecious manner without applying judicial mind. The learned Court omitted to consider the vital part of the prayer of the petitioner for no reason whatsoever. Therefore, the order is liable to be set aside. 9) Coming to the merits of the petition for repairing I find that the report of the learned Commissioner who held the inspection of the suit premises before the impugned order was passed, shows that there was a rail affixed to the floor of the entrance indicating existence a collapsible gate. He also detected holes on the wall meant for fixing collapsible gate with wall of the entrance gate. The report of the inspection unmistakably and undoubtly leads to a conclusion that their existed a collapsible gates which was either uprooted or broken. It was submitted by the learned Counsel appearing on behalf of the petitioner that all the flats in that building are having collapsible gate in their main entrance. I have stated earlier that the suit flat is under occupation of the petitioner. The opposite parties are not occupying the same at present. If so, apparently there is not reason for not allowing the petitioner to refix the collapsible gate at the entrance as it was either uprooted or broken. From the materials on record, I find that a proceeding under Section 144 of the Cr.P.C. was initiated by the petitioner and in that proceeding, the officer-in-charge of the local police station held an inspection on spot and also submitted a report of inspection to the Executive magistrate. From the materials on record, I find that a proceeding under Section 144 of the Cr.P.C. was initiated by the petitioner and in that proceeding, the officer-in-charge of the local police station held an inspection on spot and also submitted a report of inspection to the Executive magistrate. The report finds support of the report of the learned Commissioner who held local inspection of the suit premises in compliance with the Courts direction. The officer-in-charge of the local police station also found that their existed a collapsible gate which was either uprooted or broken. Therefore, while all the persons who are residing in the other flats in that complex are having collapsible gates at their main entrances of their flats and while their existed a collapsible gate at the main entrance of the suit premises, the prayer of the petitioner to refix the same ought to have been allowed. Simple refixing a collapsible gate at the entrance would not have caused any prejudice to the opposite parties. This apart, the nature and character of the suit property would not have changed simply because of refixing a collapsible gate at the entrance. So, on consideration of the factual aspect, I find that the prayer of the petitioner for refixing the collapsible gate at the main entrance of the suit premises is to be allowed. 10) Accordingly, I allow the revision application. The order dated 26.7.2006 is set aside only to the extent “ It is to be noted here that no permission is given to the plff. to refix collapsible gate in the three sides of the outer wall at the entrance of the suit property as state by him.” 11) The petitioner is directed to refix the collapsible gate at the main entrance using the existing rail attached to the lower part of the entrance within seven (7) days from the date of communication of the order. 12) The matter appears to be a petty old one and requires expeditious adjudication. Therefore, the learned Judge is directed to dispose of the suit as expeditiously as possible preferably within six months from the date of communication of the order. The parties to the suit are also directed to help the learned Court in disposing of the matter finally without asking adjournments. 13) The revision application is, thus, disposed of. 14) No order as to costs is passed.