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2016 DIGILAW 2 (CAL)

Gayatri Singh Rai v. Arup Ratan Paul

2016-01-04

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : This revisional application is at the instance of the present defendant in Ejectment Suit No. 61 of 2003, pending before the learned 5th Bench, in the Presidency Small Causes Court at Calcutta. By the impugned order dated September 10,2015 the learned Court below rejected the application filed by the father of petitioner, the original defendant in the ejectment suit, under Order XXXIX Rule 7 read with Section 151 of the Code of Civil Procedure, 1908 praying for, appointment of an advocate commissioner. The suit property comprising one room is situated on the ground floor of the building situate at Premises No 3A Indian Mirror Street, Kolkata. Some portions of the building is in the possession the opposite party plaintiff. The opposite party-plaintiff filed the ejectment suit claiming eviction of the original defendant, the father of petitioner, from the suit property on the ground that he reasonably requires the suit property for his own use and occupation. From the impugned order itself it appears that the opposite party-plaintiff filed an application in the ejectment suit under Order XXXIX Rule 7 of the Code of Civil Procedure, 1908 for appointment of an advocate commissioner to inspect his present accommodation, the other portions of the building at Premises No. 3A, Indian Mirror Street, Kolkata, as also the suit property which was allowed by the learned Court below. The learned advocate commissioner carried out the commission work by visiting the building at 3A, Indian Mirror Street, Kolkata. It appears that the learned Advocate Commissioner could not have access to the suit property and as such she could not carry out the commission work with regard to the suit property occupied by the defendant-tenant. The learned Advocate Commissioner filed her report before the learned Court below on July 29,2010. The evidence of the plaintiff’s witnesses is concluded. The learned advocate commissioner adduced evidence before the learned Court below as PW-2 and her report was tendered and marked as “Exhibit- 10” in the suit. The original defendant in the ejectment suit also adduced evidence in the suit. After the conclusion of evidence of both the plaintiff and the original defendant respectively in the ejectment suit, in August 2014 the original defendant filed the application under Order XXXIX Rule 7 read with Section 151 of the Code of Civil Procedure, 1908. The original defendant in the ejectment suit also adduced evidence in the suit. After the conclusion of evidence of both the plaintiff and the original defendant respectively in the ejectment suit, in August 2014 the original defendant filed the application under Order XXXIX Rule 7 read with Section 151 of the Code of Civil Procedure, 1908. In the said application the original defendant prayed that a further learned advocate commissioner be appointed to carry out the commission work with regard to the certain rooms and bathrooms of the building, comprising the suit property already mentioned in the report of the learned advocate commissioner, being “Exhibit –10” in the suit. The original defendant further claimed that the learned advocate commissioner be appointed to visit and carry out the commission work at the respective matrimonial homes of the two sisters of the plaintiff, as the plaintiff has claimed that he requires two rooms for his two married sisters. In the application the original defendant further alleged that during the pendency of the ejectment suit the plaintiff has obtained possession of one room of the building by executing an eviction decree and the learned advocate commissioner should be appointed to carry out the commission work at the said room also. During pendency of the said application, the original defendant died and his married daughter, being the petitioner in this revision application was substituted in the suit as the sole defendant. By the impugned order the learned Court below rejected the application of the defendant-petitioner for appointment of an advocate commissioner, on the ground that in the earlier commission report, the learned advocate commissioner already mentioned that according to the plaintiff there are four rooms on the ground floor of the building which are in occupation of the other tenants and under lock and key and it is the duty of the plaintiff to prove the same and as such there is no further requirement of any further advocate commissioner be appointed for carrying out any work in respect of any of the said four rooms. The learned Court below further held that the plaintiff’s sisters’ accommodation at their matrimonial homes is not the subject matter of the suit and those are not required to be inspected. The learned Court below further held that the plaintiff’s sisters’ accommodation at their matrimonial homes is not the subject matter of the suit and those are not required to be inspected. So far as the claim of the original defendant that the plaintiff has taken possession of one of the rooms during the pendency of the eviction suit, the learned Court below held that the same is not admitted by the plaintiff and it is the defendant who is to first establish that the plaintiff has obtained possession of one of the rooms of the building by executing an eviction decree. Mr. Sharma appearing for the petitioner, being married daughter of the original defendant tenant, since deceased contended that the impugned order passed by the learned Court below is vitiated by patent illegally and the same is liable to be set aside by this Court. Ms. Chaudhury appearing for the plaintiff opposite party, however, submitted that the evidence of the plaintiff and the original defendant in the ejectment suit have already been concluded before the learned Court below and thereafter, the original defendant filed the application for appointment of advocate commissioner with the sole object to delay the conclusion of the ejectment suit. She contended that the impugned order passed by the learned Court below suffers from no infirmity and the petitioner, being the married daughter of the original defendant, since deceased has also filed this revisional application to delay the conclusion of hearing of the ejectment suit. Having considered the facts and circumstances of the case and the submissions of both Ms. Chowdhury and Mr. Sharma appearing for the respective parties, I am unable to convince myself to find any merit in this application. In the instant case it is evident that the plaintiff’s evidence is concluded. During the life time of the original defendant Akshyabar Singh, the learned advocate commissioner filed before the learned Court below on July 29, 2010, the learned advocate commissioner as PW-2 proved her commission report and the same has been exhibited as “Exhibit-10” of the suit without any objection. After his evidence was concluded, the original defendant, since deceased filed his application in August 2014 under Order XXXIX Rule 7. After his evidence was concluded, the original defendant, since deceased filed his application in August 2014 under Order XXXIX Rule 7. No doubt in his plaint, the plaintiff -opposite party has claimed that he requires two rooms for his two married sisters but that does not confer any right upon the original defendant or his daughter, the present defendant-petitioner, to pray for an order for appointment of an advocate commissioner to inspect the matrimonial homes of those two married daughters of the plaintiff. Neither in the written statement the original defendant alleged nor in his evidence, the original defendant proved that by executing any eviction decree against another tenant the plaintiff-opposite party has obtained possession of any room of the building. Thus, the application of the original defendant, since deceased for appointment of an advocate commissioner, that too after conclusion of his own evidence, to inspect any room of the building without any specification does not appear to be bona fide. When it is already stated in the report of the advocate commissioner, that is, “Exhibit-10” of the proceeding that according to the plaintiff, there are four rooms on the ground floor which are under occupation of other tenants and under lock and key, the learned Court below was right to hold that it is the duty of the plaintiff to prove the same and the defendant-petitioner has no right to claim appointment of an advocate commissioner to inspect those four rooms, more so when evidence of both the plaintiff and the original defendant was already concluded. For all the aforesaid reasons, I find no merit in this revisional application. In the facts of the case as already discussed, I find substance in the submission of Ms. Chowdhury appearing for the plaintiff-opposite party that the object of filing of the application under Order XXXIX Rule 7 read with Section 151 of the Code of Civil Procedure, 1908 by the original defendant, since deceased was and the object of filing this revisional application by the substituted defendant petitioner is to delay the conclusion of the ejectment suit which is pending disposal from 2003. Accordingly, the revisional application stands rejected with costs assessed at Rs.1,000/- to be paid by the petitioner to the High Court Legal Services Committee, within January 29, 2016. Accordingly, the revisional application stands rejected with costs assessed at Rs.1,000/- to be paid by the petitioner to the High Court Legal Services Committee, within January 29, 2016. Since, the ejectment suit is pending disposal for the last 12 years and as such the learned Judge, 5th Bench, Presidency Small Causes Court at Calcutta is requested to expeditiously dispose of the Ejectment Suit No. 61 of 2003 preferably, within April 30, 2016, without granting unnecessary adjournment to either of the parties. Let, this application appear on February 1, 2016 under the heading “To Be Mentioned” to ascertain the compliance of this order by the petitioner. Certified website copies of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.