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2012 DIGILAW 579 (CAL)

Jugal Kishore Sadani v. Md. Anwar Khan

2012-07-03

PRASENJIT MANDAL

body2012
JUDGMENT: PRASENJIT MANDAL, J. 1. THESE two applications have arisen out of the same suit but on different orders and they are disposed of by this common judgment. 2. FOR convenience, the C.O. No.2884 of 2011 is taken up for hearing first. C.O. No.2884 of 2011:- 3. THIS application is directed against the Order No.71 dated June 9, 2011 passed by the learned Judge, City Civil Court, 7th Bench, Calcutta in Title Suit No.1568 of 2003 thereby allowing an application under Order 39 Rule 7 of the CPC on contest. 4. THE plaintiff/opposite party herein instituted a suit being Title Suit No.1568 of 2003 for declaration, permanent injunction and other reliefs. 5. THE defendant No.1/petitioner herein is contesting the said suit by filing a written statement denying all the material allegations raised in the plaint. Both the parties have adduced evidence in support of their respective contentions and the suit was fixed for delivery of judgment after closer of hearing of argument on behalf of both the sides. At the time of writing judgment, the 2nd Trial Judge was of the opinion that the exact location and situation of the suit property could not be ascertained with any decree of precision. The learned Trial Judge was also of the view that a Commission should be held by a Commissioner to find out the exact location and situation of the suit property. Such a view had been recorded in the Order No.60 dated April 9, 2009. Accordingly, on the basis of the application filed by the plaintiff/opposite party herein, the impugned order was passed. Being aggrieved by such orders, this application has been preferred. 6. NOW, the question is whether the impugned order should be sustained. 7. UPON hearing the learned Advocates for the parties and on going through the materials-on-record, I find that at the time of writing the judgment, the then learned Trial Judge, namely, N. Mutsuddi was of his personal view that a Commission should be held to find out the exact location and situation of the suit property. In order to understand the situation so far as the suit property is concerned, the same is quoted below:- Suit Property "ALL THAT one Hanging Almirah (Shop measuring about 6 Feet x 11/2 inches i.e. 9 Sq. feet depth 8 inches thick wall on the ground floor (Road facing) at Premises No.18, Radhabazar Lane, Calcutta ? In order to understand the situation so far as the suit property is concerned, the same is quoted below:- Suit Property "ALL THAT one Hanging Almirah (Shop measuring about 6 Feet x 11/2 inches i.e. 9 Sq. feet depth 8 inches thick wall on the ground floor (Road facing) at Premises No.18, Radhabazar Lane, Calcutta ? 700001 at a monthly rental of Rs.251/- payable according to English Calendar." 8. THUS, I find that by the Order dated April 9, 2009, the learned Trial Judge did not indicate as to what points an inspection was to be held on. Taking opportunity of this order, the plaintiff/opposite party herein filed an application for local inspection on the points noted below:- (a) To take measurement of the Plaintiffs' shoproom (Suit room) and the shoproom of the defendant No.1. (b) Whether the shoproom (suit room) of the Plaintiff is separated and defined with the shoproom of the defendant No.1 if so, to take note of existing position, location and occupation of the shoproom of the Plaintiff and the defendant No.1? (c) Whether the defendant No.1 is occupying and possessing of any other portion or part thereof of the said entire building save and except one room? (d) To note such other feature or features as may be pointed out by the parties at the time of holding inspection. 9. NOW, I am told that the learned Trial Judge, namely, Mr. N. Mutsuddi had retired from service. 10. THIS being the position, the matter which was in the mind of the then learned Trial Judge as to inspection on the exact location and situation of the suit property, cannot be determined. The then learned Trial Judge did not point out at all what points inspection would be actually necessary on. It is impossible for the present learned Trial Judge to assess what was in the mind of the then learned Trial Judge. 11. UNDER the circumstances, without going into the merit of the application for location inspection and the impugned order, I am of the view that the impugned order should be set aside and the present learned Trial Judge should be directed to take up the suit for hearing of the argument afresh. 12. 11. UNDER the circumstances, without going into the merit of the application for location inspection and the impugned order, I am of the view that the impugned order should be set aside and the present learned Trial Judge should be directed to take up the suit for hearing of the argument afresh. 12. AFTER hearing the argument on behalf of both the sides, if he considers that the inspection on the points as mentioned by the plaintiff in his application or on other points, if any, is necessary, he may pass appropriate orders thereon. Otherwise, if he thinks that the inspection is not, at all, necessary, he shall reject that application and deliver judgment accordingly. 13. THE impugned order cannot be sustained. 14. THE application is allowed. 15. THE impugned order is hereby set aside. The learned Trial Judge shall proceed with the suit in the manner indicated above. 16. AS a precautionary measure it is recorded that I have not gone into the merit of the application for local inspection dated April 30, 2009 appearing as Annexure 'B' at page No.16. 17. CONSIDERING the circumstances, there will be no order as to costs. C.O.No.1731 of 2009:- 18. THIS application is also at the instance of the defendant No.1 and is directed against the Order No.60 dated April 9, 2009. In view of the above order, this order cannot be sustained. 19. THE application succeeds and the same is allowed. 20. THE learned Trial Judge is to proceed with the suit in the manner indicated in C.O. No.2884 of 2011. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.