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2018 DIGILAW 683 (CAL)

Dina Nath Shaw @ Dino Nath Shaw v. Mritun alias Mritunjay Dolui

2018-09-14

SABYASACHI BHATTACHARYYA

body2018
JUDGMENT : 1. Let the affidavit of service filed in Court today be kept with the record. 2. The present challenge has been filed by the landlord in an eviction suit, filed inter alia on the ground of reasonable requirement. By the impugned order, the trial court refused to grant local inspection sought by the plaintiff/petitioner to ascertain the number of rooms at the premises in question and the extent of occupation of the defendant. The trial court proceeded on a vague premise of the scope of Order XXXIX Rule 7 of the Code of Civil Procedure and held that the question as to how many rooms are in occupation of the defendant, including the measurement, could not be ascertained by way of local inspection. 3. Learned counsel for the petitioner submits that since the said inspection was vital for the purpose of establishing the ground of reasonable requirement, the trial court acted without jurisdiction in refusing the same. 4. Learned counsel for the opposite party, on the other hand, fairly submits that the opposite party has no objection on principle to the inspection, except point no.3 as stipulated in the application under Order XXXIX Rule 7 of the Code, inasmuch as the said point sought a roving enquiry with regard to the suit premises. It is submitted, by placing reliance on the plaint, that the plaintiff categorically stated in his pleadings that the suit property, of which the opposite party is a tenant, is comprised of one shop/godown room and now cannot seek an enquiry as to the how many rooms are there, under the occupation of the defendant/opposite party. 5. There is substance in the contention of the opposite party, that in view of the specific averment as to only one shop/godown room, along with easement rights, being in occupation of the defendant, the plaintiff cannot now seek to fish out evidence by asking for inspection as to how many rooms are in occupation of the defendant. 6. However, the said inspection is valid in so far as the measurement of the suit room, which is admittedly in occupation of the defendant/opposite party, is concerned. 7. 6. However, the said inspection is valid in so far as the measurement of the suit room, which is admittedly in occupation of the defendant/opposite party, is concerned. 7. Accordingly, C.O. No.2234 of 2018 is disposed of on contest, thereby modifying the impugned order and permitting local inspection to be held, as prayed for in the application filed by the plaintiff/petitioner under Order XXXIX Rule 7 of the Code of Civil Procedure, in respect of point nos.1, 2 and 4 thereof. Point no.3 of such application is refused. However, the Commissioner appointed shall also hold inspection, along with point nos.1, 2 and 4, to ascertain the measurement of the shop/godown room in occupation of the defendant in the suit holding no.59/1, Kings Road, P.S. Golabari, District-Howrah. 8. There will be no order as to costs. 9. Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.