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2018 DIGILAW 691 (CAL)

In Re: Bimal Kr. Dutt v. .

2018-09-14

SAHIDULLAH MUNSHI

body2018
JUDGMENT : Sahidullah Munshi, J. 1. This revisional application is directed against order No. 27 dated 5th January, 2018 passed by learned Judge, 10th Bench, City Civil Court at Calcutta being Title Suit No. 220 of 2014. at the instance of the plaintiff-petitioner. 2. In brief the plaint case is that the plaintiff entered into an agreement for sale of the suit property being a flat measuring about 600 sq. ft. (super built up area) be the same a little more or less on the eastern side of the three storied residential building situated at premises No. 42B, Raja Raj Ballab Street, P.S. Shyampukur, Kolkata 700 003 fully and particularly described in the first schedule of the said agreement. The agreement was executed by and between the parties on 26th July 2006. It is one of the terms in the agreement that in case the defendant failed to pay the amount of instalment being part of the consideration money, the agreement shall be deemed to have been terminated and the relationship between the plaintiff and the defendant would be licensor and licensee. On the happening of such an event that the defendant failed to act in terms of the said agreement by not paying the instalment within the time stipulated, the plaintiff revoked the licence and filed a suit for eviction against the defendant. In such a suit for eviction, the defendant has filed a written statement with counter claim. Prayers made in the said counter claim are set out below: (a) The suit of the plaintiff be dismissed with costs; (b) Decree for declaration that in part performances of the mutual agreement for sale the defendant was put in possession of the suit premises fully described in the Schedule written here in below and he is in settled possession thereof as owner; (c) Decree for mandatory injunction directing the plaintiff to execute and register the Deed of Conveyance in respect of the suit premises fully described in the Schedule written here in below on receipt of balance consideration of Rs. 79,798/- alternatively an officer of the Court be deputed to execute and register the Deed of Conveyance in respect of the suit premises; (d) All costs of land Including this counter claim and Advocate's fees; (e) Such other relief or reliefs to which the defendant is entitled to under the law and in equity. 3. 79,798/- alternatively an officer of the Court be deputed to execute and register the Deed of Conveyance in respect of the suit premises; (d) All costs of land Including this counter claim and Advocate's fees; (e) Such other relief or reliefs to which the defendant is entitled to under the law and in equity. 3. A separate schedule has also been mentioned while filing the counter claim. The said schedule is at page 69' and is reproduced here in below: "All THAT one self contained Flat measuring about 375 square feet (super built up area) be the same a little more or less consisting" of two bed rooms, one kitchen cum dinning, one toilet together with the undivided proportionate share of land along with right of user of common areas and all other facilities and amenities attached thereto lying and situated on the Eastern side of the First Floor at Premises No. 428, Raja Rajaballav Street, under Police Station Shyampukur, Kolkata - 700003 being butted and bounded:- On the North : Partly by staircase and partly by flat under occupation of Kaushik Mullick; On the East : By common passage beneath; On the South : By common passage beneath; On the West : By common passage beneath.” 4. As per prayer (c) of the counter claim, the defendant appears to have claimed for an area measuring 375 sq. ft. super built up area be the same little more or less as per his schedule. From the prayers made in the counter claim it is apparent that the defendant has made a prayer for dismissal of the suit for eviction and also prayed for a decree for specific performance of the agreement in respect of the 375 sq. ft. super built up area as mentioned in the schedule appended to the counter claim. The defendant however, has also pointed that in the written statement they disputed the amount to be paid under the said agreement in respect of the flat in question. In paragraph 37' of the counter claim the defendant has categorically stated that the defendant supplied a copy of the said plaint to the plaintiff and told him that the actual measurement of the flat is 375 sq.ft. (super built up) and not the 600 sq. ft. (super built up) as it was represented to him. In paragraph 37' of the counter claim the defendant has categorically stated that the defendant supplied a copy of the said plaint to the plaintiff and told him that the actual measurement of the flat is 375 sq.ft. (super built up) and not the 600 sq. ft. (super built up) as it was represented to him. The defendant, accordingly, requested him to calculate the actual price of the said flat proportionately with its actual measurement and to make arrangement for execution and registration of the Deed of Conveyance on the basis of actual measurement after receipt of the proportionate balance amount to which the plaintiff become furious and told the defendant that he will have to pay the price of Rs. 10 lakhs for the said flat and if he does not agree to that he will teach him a lesson." It is also admitted position that in pursuance of the agreement which was executed in 2006 the defendant was put into possession by the plaintiff and, therefore, the defendant claims specific performance of agreement keeping in mind part performance occurred at the instance of the plaintiff under Section 53A of the Transfer of Property Act. 5. Be that as it may, it is no more disputed in view of paragraph 37' and the schedule mentioned in the counter claim that the plaintiff was in possession of at least 375 sq.ft. super built up area. Therefore, the only dispute is with regard to the mode of payment and the amount to be made by the defendant to the plaintiff after the conveyance is to be executed by the plaintiff in favour of the defendant. In such background whether the application under Order XXVI Rule 9 is at all required or not is the subject matter of dispute here. The defendant filed an application under Order XXVI Rule 9 of the Code of Civil Procedure seeking appointment of an engineer-commissioner for measurement of the flat in question. Order XXVI Rule 9 reads as follows: "Order XXVI Rule 9. The defendant filed an application under Order XXVI Rule 9 of the Code of Civil Procedure seeking appointment of an engineer-commissioner for measurement of the flat in question. Order XXVI Rule 9 reads as follows: "Order XXVI Rule 9. Commissions to make local investigations.--In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." 6. From the said provision it is clear that only for the purpose of elucidation of in any matter in dispute, appointment of engineer commissioner is required and if that is requisite or proper according to the justification of the Court, the Court can appoint an engineer-commissioner. In this case since the defendant has made out a prayer for decree in respect of 375 sq. ft. super built up area and he admits that on the day of agreement he was put into possession of the said area, in my view, there is no point in dispute in the suit which requires to be elucidated by the Court. It may be only in dispute that the amount of payment to be made by the defendant in pursuance of the agreement and for that the Court is required to interpret the terms of the agreement vis-à-vis. entitlement of the parties and for that purpose no commission is required. 7. Therefore, the circumstances do not justify appointment of an engineer-commissioner under the provisions of Order XXVI Rule 9 of the Code of Civil Procedure. The exercise so made by the learned Court below appears to be abuse of the process of law and is without jurisdiction. 8. The impugned order is liable to be set aside and the same is hereby set aside. 9. However, there will be no order of costs in the facts of the case.