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2011 DIGILAW 65 (CAL)

Sanwar Ali v. Anjali Singha

2011-01-18

PRASENJIT MANDAL

body2011
JUDGMENT PRASENJIT MANDAL, J. 1. CHALLENGE is to the order dated February 7, 2009 passed by the learned Additional Civil Judge (Junior Division), First Court, Alipore in Title Suit No.132 of 2007 thereby allowing an application under Order 26 Rule 9 of the Code of Civil Procedure filed by the plaintiff. 2. THE plaintiff instituted a title suit being T. S. No.20 of 2002 praying for a decree for declaration of his tenancy right under the defendant no.6, decree of permanent injunction and a decree for mandatory injunction in respect of the suit property, as described in the schedule of the plaint, against the defendants. THE defendant nos.1 and 2 are contesting the said suit by filing a written statement. At the time of filing of the suit, the plaintiff moved an application for temporary injunction. THE prayer for ad interim injunction was refused by the learned Trial Judge. Thereafter a misc. appeal was preferred against the said order and the learned Additional District Judge allowed the misc. appeal directing both the parties to maintain status quo with regard to the suit property and also directed the learned Trial Court to dispose of the application for temporary injunction. Thereafter, the plaintiff filed an application under Order 39 Rule 7 of the C.P.C. which was disposed of without any order. Thereafter, an application was filed under Order 26 Rule 9 of the C.P.C. for local investigation in respect of certain points with relation to the suit property. That application was allowed by the impugned order. Being aggrieved, this application has been preferred by the defendant nos.1 and 2. Mr. Biswajit Basu, learned Advocate appearing on behalf of the petitioners, submits that the plaintiff instituted the said suit for declaration of his tenancy right, permanent injunction and for mandatory injunction praying for demolition of encroachment. At the time of filing of the suit, the plaintiff moved an application for ad interim injunction and that prayer was refused. Thereafter, the learned lower appellate court directed the parties to maintain status quo with regard to the suit property. At the time of filing of the suit, the plaintiff moved an application for ad interim injunction and that prayer was refused. Thereafter, the learned lower appellate court directed the parties to maintain status quo with regard to the suit property. In an aid to the disposal of the said application for temporary injunction, the plaintiff filed the said application under Order 26 Rule 9 of the C.P.C. He refers to the points of investigation as laid down in the application for local investigation and thus, he submits that the learned Trial Judge should not have rejected such application since it was simple as an aid to the application for temporary injunction. 3. ON the other hand, Mr. Shyamal Chakraborty, learned Advocate appearing on behalf of the opposite parties, submits that in fact the prayer for local investigation was sought for not only for the purpose of temporary injunction but also for the purpose of proper adjudication in the suit. He points out to the prayer (c) of the plaint wherein the plaintiff has sought for relief of mandatory injunction praying for demolition of the wall which had been constructed by the contesting defendants encroaching the courtyard of the plaintiff in connection with his premises. He has supported the impugned order. 4. NOW, therefore the point that arises for decision is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on perusal of the materials on record, I find that the suit is by a tenant against the landlord and other persons who are residing adjacent to the plaintiff for reliefs of declaration and injunction. For convenience, the reliefs sought for by the plaintiff are mentioned below:- a) a decree for declaration that the plaintiff is a tenant under the defendant no.6 in the suit property as described in the schedule of the plaint hereunder; b) a decree of permanent injunction restraining the defendant no.1 to 3 and their mean and associates from making any encroachment in any part of the suit property and/or making any construction thereof ; c) a decree for mandatory injunction for demolition of pillars/walls already constructed illegally In the suit property as shown in the Red bordered area (walls) in the suit property at the cost of the defendant no.1 to 3 ; d) all cost of the suit ; e) any other relief of reliefs. The plaintiff /opposite party herein has described the schedule of the plaint in details supported by a sketch map and he has clearly stated that the red bordered areas are the unauthorised walls/construction on the courtyard alleged to have been raised by the contesting opposite parties. Therefore, from the schedule of the plaint, as described by the plaintiff, I find that he has elaborately laid down what is the extent of the suit property and also the portion over which the encroachment had been done by the contesting opposite parties by making unauthorised walls/construction. So, description of the suit property is full and complete. 5. NOW, the points for investigation as sought for by the plaintiff as appearing at page 17 (annexure A) of the application is quoted below:- 1. That the learned Survey passed Commissioner to go to the suit property and to note and measure the suit room and the abutting vacant land-court-yeard in front of the plaintiff residential house i.e. on the adjacent North of the residential room and varandah. 2. That the learned Commissioner shall note the existing boundary walls abutting to the suit premises, its nature and existent i.e. measurement of the same, length and height. 3. That the learned Commissioner draw a sketch map of the suit property and the abutting vacant land of the suit property. 4. Any other features. 6. SO far as point no.1 is concerned, I find that the plaintiff has sought for noting and measuring the suit room and the abutting vacant land courtyard in front of the plaintiffs residential house. The measurement of the room in suit is not under challenge in the suit. SO far as the courtyard is concerned, the plaintiff has specifically stated the portion upon which the encroachment had been done by the contesting opposite parties. It may be noted herein that the so-called encroachment/construction had been made on November 25, 2001 that is, about six years back. But, the suit for declaration and injunction had been filed in the year 2007 only. This being the position, I am of the clear view that no commission is required for survey with regard to the point no.1 at all. As regards point no.2, the plaintiff has prayed for noting the existing boundary walls abutting to the suit premises, its nature and extent, that is, measurement of the same, length and height. This being the position, I am of the clear view that no commission is required for survey with regard to the point no.1 at all. As regards point no.2, the plaintiff has prayed for noting the existing boundary walls abutting to the suit premises, its nature and extent, that is, measurement of the same, length and height. It is the specific case of the plaintiff that the height of the wall is eight feet and he has clearly stated that construction / encroachment had been done leaving two feet only by such wall. So, description of the encroachment by raising wall has been clearly stated in the plaint. 7. SO far as point no.3 is concerned, the plaintiff has prayed for directing the commissioner to draw a sketch map of the suit property and the abutting vacant land of the suit property. This also, I hold, is not necessary at all for the adjudication of the matter in dispute. Though the plaintiff has sought for demolition of the encroachment in prayer (c) of the prayer for relief, since description of the suit property and the encroachment have been elaborately stated in the schedule of the plaint, I am of the view that this point is not also necessary for investigation. Mr. Basu submits that investigation has been sought for as an aid to the application for injunction and it is not necessary at all. But, in this regard, on perusal of the application for local investigation, I find that the plaintiff has sought for investigation not only for the purpose of disposal of the petition for temporary injunction but also for the suit as mentioned in paragraph 6 of Annexure A at page no.15. Therefore, it is clear that investigation has been sought for not only for the disposal of the petition for temporary injunction but also for deciding the suit finally. 8. SINCE description of the premises in suit and the so-called encroachment have been clearly stated in the plaint, I am of the view that no investigation is necessary at all on the point as mentioned in the application for local investigation. The learned Trial Judge has, therefore, failed to exercise the jurisdiction vested in him. Mr. 8. SINCE description of the premises in suit and the so-called encroachment have been clearly stated in the plaint, I am of the view that no investigation is necessary at all on the point as mentioned in the application for local investigation. The learned Trial Judge has, therefore, failed to exercise the jurisdiction vested in him. Mr. Chakraborty has referred to the decision reported in AIR 1988 Cal 400 and submitted that if the decision of the lower court is erroneous in fact or law errors however not having relation to jurisdiction decision cannot be interfered in revision (paragraph 7). The question is whether the proposed investigation is necessary for proper adjudication. If the investigation is not at all necessary to arrive at a conclusion with regard to the matter in dispute and if the Court passes an order for holding investigation it can well be described not only errors in fact but also failure to exercise the jurisdiction properly. Therefore, the revisional Court can well interfere in such circumstances. In exercising the jurisdiction under Article 227 of the Constitution, this Court can well entertain such an application to see that the parties are not put to take unnecessary steps with regard to the suit. The order impugned, therefore, cannot be supported. This application succeeds. It is allowed. The impugned order is hereby set aside. 9. SINCE the suit is an old one, the learned Trial Judge shall see for expeditious disposal of the suit. Considering the circumstances, there will be no order as to costs. In view of the disposal of the revisional application, the CAN No.8293 of 2010 praying for dismissal of the revisional application has become infructuous and so it is also dismissed. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.