Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1153 (CAL)

Amar Nath Agarwal v. Kanchan Decided on :

2011-08-24

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This revisional application is at the instance of the defendant and is directed against the Order No.28 dated May 6, 2011 passed by the learned Judge, Presidency Small Causes Court, 5th Bench, Calcutta in Ejectment Suit No.90 of 2007 thereby refusing to recall or modify the order dated November 10, 2010 passed by the learned Judge. The plaintiff / opposite party herein instituted a suit being Ejectment Suit No.90 of 2007 against the petitioner for recovery of possession of the premises in suit as described in the plaint on the ground of reasonable requirement. The defendant / petitioner herein is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. The plaintiff filed an application under Order 39 Rule 7 of the C.P.C. for inspection of his residential premises to show the extent of his present accommodation. That application was allowed on contest. Subsequently, the defendant / tenant filed an application for recall or modification of the order of inspection contending that the plaintiff did not disclose a portion of another accommodation under his occupation and such property should be inspected to know the extent of accommodation of the plaintiff. That prayer for recall or modification was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the plaintiff has stated clearly that he is the owner of the Premises No.46/21 S.N. Banerjee Road, under P.S. Taltala, Kolkata-700014 which is a fourstoried building and the defendant is in occupation of the first floor of the said premises at a rental of Rs.1,000/- per month. The plaintiff is also a co-owner of the premises no. 46/7 S.N. Banerjee Road, under P.S. Taltala, Kolkata-700014 which is a three-storied building and the entire building is under occupation of the tenants. But there are two asbestos shed rooms and one thakur ghar situated on the roof of the second floor of the premises out of the said asbestos shed. The tenant is in occupation of one room and the rest are in occupation of the plaintiff. But there are two asbestos shed rooms and one thakur ghar situated on the roof of the second floor of the premises out of the said asbestos shed. The tenant is in occupation of one room and the rest are in occupation of the plaintiff. The contention of the defendant is that the plaintiff did not seek for inspection of his other accommodation at 46/7 S.N. Banerjee Road, under P.S. Taltala, Kolkata- 700014 and so, he filed an application for recall or modification of the order dated November 10, 2010 in consideration of his objection. As the plaintiff has disclosed that he has an accommodation at 46/71 S.N. Banerjee Road, under P.S. Taltala, Kolkata-700014 and the defendant has also contended that the plaintiff has other accommodation also at 80, Rafi Ahmed Kidwai Road. This accommodation of the plaintiffs should have been taken into consideration by the learned Trial Judge in passing the impugned order. Accordingly, I am of the view that the impugned order cannot be supported. It is hereby set aside. The learned Trial Judge is directed to hear out the application for recall for inspection and its objection as filed by the petitioner afresh and thereafter, he shall dispose of the same in accordance with law. He shall exercise such discretion within 30 days from the date of communication of this order to him. Considering the circumstances, there will be no order as to costs.