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2013 DIGILAW 601 (CAL)

Vijay Kumar Swaika v. Vineet Kumar Swaika

2013-08-22

PRASENJIT MANDAL

body2013
JUDGMENT Prasenjit Mandal, J. This application is at the instance of the defendant no.1 and is directed against the Order No.47 dated May 24, 2012 passed by the learned Judge, 6th Bench, City Civil Court, Calcutta in Title Suit No.910 of 2006 thereby rejecting an application under Order 26 Rule 9 read with Order 39 Rule 7 read with Section 151 of the C.P.C. In this suit plaintiff being the son has instituted the suit against his father, defendant no.1 for declaration of title, recovery of possession, damages and other reliefs. The father being the defendant no.1 is contesting the said suit by filing a written statement denying the material allegations. One Gyanwati Devi Swaika was the owner of the premises no. 25B Shakespeare Sarani, Kolkata – 700017 being a six storied building and compromising several flats and she was the adoptive mother of the defendant no.1. She gifted two flats being flat nos. 5 & 6 on the 4th floor of the said premises in the northern block along with two garages and two servants’ rooms at the ground floor in favour of the plaintiff in 1971. The son was then a minor and the gift was accepted by the father on behalf of his son. The plaintiff/son filed the suit being Title Suit No.910 of 2006 along with an application for temporary injunction, as the father did not allow the plaintiff to park his car in the open space adjacent to the suit building. It may be noted herein that the father also filed a suit being no.967 of 2006 against the son for declaration of title and permanent injunction and he also prayed for temporary injunction against the son. The said matter came to the Hon’ble Court in F.M.A.T. No.3863 of 2006 and the same was disposed of by holding that the learned Trial Judge had made it clear that the defendant no.1 should park his car in a suitable place in the northern side of the suit premises without causing any obstruction or hindrance to the other occupiers of the flats of the suit premises for their ingress to and egress from the premises. The Commissioner was appointed and he submitted his report dated September 2, 2006. The Commissioner was appointed and he submitted his report dated September 2, 2006. Subsequently, the defendant filed an application under Order 26 Rule 9 read with Order 39 Rule 7 read with Section 151 of the C.P.C. While disposing of the said application, the learned Trial Judge has observed that there is a dispute between the father and the son and the Advocate Commissioner was appointed to hold the inspection of the suit property and he had already submitted his report in the year 2006 and so, at this stage the prayer for appointment of a survey passed civil engineer is not necessary. Accordingly, he has rejected the application. In consideration of the reliefs, sought for in the application and the report submitted by the Commissioner in the year 2006, in my view, this application has been filed by the defendant no.1 at the belated stage to frustrate the suit so that, the instant suit cannot reach at the final stage. The defendant no.1 has sought for appointment of a survey passed civil engineer to ascertain the real structural position of the premises for proper adjudication of the suit. Several other petitions are pending and so from the conduct of the defendant no.1 it appears that he has wanted to prolong the litigation for the reasons best known to him and as such this application has been filed. Mr. Hiranmoy Bhattacharjee, learned Advocate appearing for the petitioner has contended that the local inspection was held for some other purpose and the application for local investigation cum local inspection is necessary to know the real structural position of the premises for proper adjudication of the suit. With due respect to him, I am of the view that for the adjudication with the matter in dispute, the inspection by a survey passed civil engineer is not necessary. Accordingly, in my view, the learned Trial Judge has rightly rejected the application. But, in consideration of the situation, I am of the view that this is an unnecessary litigation and so, a sum of R.5,000/- should be awarded as costs to be paid by the father to his son, plaintiff/opposite party herein. Such costs must be paid within 30 days. Accordingly, in my view, the impugned order does not suffer from illegality or material irregularity. The impugned order should, therefore, be sustained. This application is, therefore, devoid of merits and is, therefore, dismissed. Such costs must be paid within 30 days. Accordingly, in my view, the impugned order does not suffer from illegality or material irregularity. The impugned order should, therefore, be sustained. This application is, therefore, devoid of merits and is, therefore, dismissed. The petitioner is directed to pay a sum of Rs.5,000/- as costs to the plaintiff/opposite party herein within 30 days from date in default the learned Trial Judge shall pass appropriate orders for realization of the costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.