Calcutta High Court
Dhan Daulat Holding Limited vs Jeewanlal (1929) Limited on 19 June, 2025
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
G.A. No. 1 of 2021
With
G.A. No. 6 of 2024
With
G.A. No. 7 of 2024
In
C.S. No. 254 of 2021
Dhan Daulat Holding Limited
Versus
Jeewanlal (1929) Limited
Mr. Sabyasachi Chowdhury, Sr. Adv.
Mr. Rohit Banerjee
Ms. Sananda Ganguli
... For the plaintiff
Mr. Pradip Kr. Dutta, Sr. Adv.
Mr. Farhan Ghaffar
2
Mr. Navneet Bhotika
Mr. Rittick Chowdhury
Mr. Sanjib Mandal
... For the defendant.
Hearing Concluded On : 23.04.2025
Judgment on : 19.06.2025
Krishna Rao, J.:
1. The plaintiff has filed an application being G.A. No. 1 of 2021 praying for the following reliefs:
"(a) Injunction restraining the Respondent, their assigns and men and agents from interfering with or disturbing or in any way creating any obstruction or hindrance to peaceful use and enjoyment of the said premises by the Petitioner and/or its men and agents;
(b) Injunction restraining the Respondent, their assigns, men and agents from obstruction the ingress and egress of the petitioner and their men and agents to the said building and to the suit premises through the staircase and the lift;
(c) Direct the Respondent to install a collapsible gate at the lift exit on the 6th floor of the building;
(d) Alternatively, the Petitioner be given liberty to install a collapsible gate at the lift exit on the 6th floor of the building at their cost and expenses;
(e) Ad interim order in terms of prayers above;
(f) Such further order or orders be passed and/or direction or directions be given as to this Hon'ble Court may deem fit and proper."
2. The plaintiff has filed another application being G.A. No. 6 of 2024 praying for the following reliefs:
3
"a) Leave granted to the petitioner to serve a copy of the present application to the authorities mentioned in paragraph 16 hereinabove;
b) An order be passed directing the authorities mentioned in paragraph 16 hereinabove to conduct an independent inspection of the said building and file a report regarding the status of the fire safety mechanism and further to ascertain whether there has been any unlawful construction and/or unlawful structural change/alteration in the said building in the absence of a sanctioned plan;
c) An order be passed directing the appropriate authority to install fire safety mechanism in the said building at the cost and expense of the respondent and the respondent be put to the penalties and charges and/or punishments as are permissible under law for the default complained of;
d) An ad-interim order of injunction be passed restraining the respondent and/or its men and agents, including the occupiers of the said building from using and/or storing any hazardous material in the said building till the Fire Safety mechanism is installed in the said building and a Fire Safety Certificate is issued in connection thereto;
e) An order be passed directing the appropriate authority to demolish all the unauthorized construction and unauthorized structural changes in the said building at the cost and expense of the respondent and impose penalty, charges and punishment on the respondent as permissible under law;
f) Ad-interim orders in terms of the prayers made herein above;
g) Costs of and incidentals to the instant application be borne by the respondent.
h) Such further and/or other order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper."4
3. The plaintiff has filed another application being G.A. No. 7 of 2024 praying for the following reliefs:
"a) An order be passed forfeiting the right of the defendant to file written statement in C.S. No. 254 of 2021;
b) An order be passed directing C.S. No. 254 of 2021 to proceed ex-parte against the defendant;
c) Ad-interim orders in terms of the prayers made herein above;
d) Costs of and incidentals to the instant application be borne by the respondent.
e) Such further and/or other order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper."G.A. No. 1 of 2021
4. By an order dated 24th December, 2021, this Court passed an ad-
interim order in terms of prayer (a) of the Notice of Motion. The ad- interim order dated 24th December, 2021 is still in force. At the time of hearing of the application being G.A. No.1 of 2021, Learned Counsel for the defendant submits that the defendant is not interfering with the possession of the plaintiff, the defendant is not going to create any third party interest over the suit premises and also not obstructing the ingress and egress of the plaintiff. He submits that he has no objection for passing an order in terms of prayers (a) and (b) of the Notice of Motion.
5
Considering the submissions made by the Learned Counsel for the defendant's prayers (a) and (b) of the Notice of Motion is allowed till disposal of the suit.
5. The case of the plaintiff that the plaintiff is a tenant with respect to the entire 6th floor of the building of the defendant. Originally, there was one lift in the building which opens to the staircase landing. Sometimes in the year 2019, the defendant has installed second lift and the lift opening from ground to the top floor, at the staircase land was walled and both the lifts were made to open in the floor area on each floor. The plaintiff has objected to such change as the entire office space of the plaintiff will be exposed through the lift opening. The defendant assured that the defendant will install a collapsible gate inside the tenanted area just outside the fascia of the lift for securing the area under the occupation of the plaintiff.
6. It is the case of the plaintiff that the defendant has installed wooden gate on the 8th floor but has not installed in the sixth floor which is in occupation of the plaintiff. The plaintiff says that the lift opens directly to the plaintiff's tenancy and the same created security hazard.
7. The defendant has filed written objection and have taken specific stand that the defendant has upgraded and improved the structure of the building for the enjoyment of the tenants. The plaintiff has also enjoyed the same and the plaintiff is no way affected by such alteration made in the said property. The defendant denied that the defendant promised to 6 install any collapsible gate at the outside portion of the premises occupied by the plaintiff.
8. It is further case of the defendant that the defendant has incurred crores of rupees for the upgradation and security of the building and the defendant is entitled to get maintenance charges at the rate of 5% per sq.ft. It is also the case of the defendant that the defendant has installed pre-paid electric meters, which is a common facility provided in commercial buildings to the occupiers.
9. When the matter was taken up for hearing on 20th September, 2023, this Court has formulated three questions to resolve the issue between the parties which are as follows:
"i) The allegations of the plaintiff that after installation of the new lift, the lift gate on the 6th floor is directly opening into the tenanted portions of the plaintiff instead of opening into the lobby as it used to happen prior to the replacement of the old lift by the new lift.
ii) What is the maintenance charges presently applicable at the building to be paid by the plaintiff and the mode by which the plaintiff shall pay the current maintenance charges.
iii) The mode of charging and payment of electricity, since there is an allegation from the plaintiff's side that the defendant is admittedly recovering the maintenance charges from the money the defendant is paying towards electricity charges only."
10. Though this Court has formulated the question for resolve the issues between the parties but none of the parties come with any proposal/ proposals. On 20th November, 2024, this Court has taken up the matter 7 for hearing and during hearing, Learned Counsel for the defendant has submitted that the defendant is ready to install a brick wall or a collapsible gate on the sixth floor and has sought time to take instructions. The matter was taken up for hearing on 11th December, 2024 and on instructions, Learned Counsel for the defendant has informed this Court that the defendant is ready and willing to put collapsible gate or whatever the plaintiff intends to. By a letter dated 12th December, 2024, the plaintiff has informed the defendant either to install collapsible gates on the inner walls of the premises in front of the 'lift fascia' or to install wooden flush doors on the inner walls of the premises in front of the 'lift fascia' similar to the ones installed on the 8th floor of the building. The plaintiff has also provided copy of designs of both the doors to the defendant.
11. In reply to the letter dated 12th December, 2024, the defendant has informed the plaintiff that the defendant is ready to construct brick walls or plywood coverage and the same shall be done in accordance with the terms and conditions of the tenancy agreement dated 21st January, 1987.
12. The defendant has denied that there is no requirement of installation of collapsible gates but during hearing, it was admitted that either collapsible gate or wooden door or any kind of adjustment is to be made to secure the tenanted premises of the plaintiff.
8
13. After creation of tenancy, the defendant has made some structural changes in the building including installation of additional lift. The lift opening from ground to the top floor, at the staircase land was walled and both the lifts were made to open in the floor area on each floor. The lift opens directly to the plaintiff's tenancy. Now, the question whether collapsible gate or wooden flush door is to be installed. In the reply dated 16th December, 2024, the defendant has informed that the defendant is ready to construct brick wall or plywood coverage.
14. Sections 2(o), (p) and (r) of the West Bengal Lift Rules, 1958 reads as follows:
"2. (1) Definitions. - In these rules, unless there is anything repugnant in the subject or context, -
(o) "landing" means that portion of a building or structure which is used for the reception and discharge of passengers or goods into or from a lift car;
(p) "landing gate or door" means the hinged or sliding portion of the lift well enclosure controlling access to the lift car at any landing;
(r) "lift car gate or door" means the gate or door in the lift car providing for its entrance and exit."
15. In the present case, the lift car gate or door opens directly to the plaintiff's tenancy i.e. in the sixth floor. If the lift stops and any person intents to come out from lift to sixth floor, the person will directly enter to the tenanted premises of the plaintiff as there is no "landing or landing gate or door" in the sixth floor. As per suggestion of the 9 defendant, the defendant is allowed to construct brick walls or plywood coverage, no person will be able to use the lift for entrance and exit in the sixth floor.
16. The defendant has made certain demands against the plaintiff with respect to the suit premises amounting to Rs. 2,886,487.73/- in terms of clause c(i), (ii), (e) and (f) of the agreement 21st January, 1987.
17. The defendant installed pre-paid electric meters, which is common facilities provided in commercial buildings to the occupiers or tenants. By an order dated 4th May, 2022, this Court directed the plaintiff to deposit a sum of Rs. 25,000/- with the defendant and the defendant was directed to restore the electric connection of the tenanted premises of the plaintiff. The defendant restored the electric connection of the tenanted premises of the plaintiff and this Court by an order dated 9th June, 2022 directed the plaintiff to pay a sum of Rs. 2,00,000/-to the defendant. Subsequently, the order dated 9th June, 2022 was modified by an order dated 17th June, 2022 by extending the time and mode of payment and further orders have been passed with regard to the claim of the defendant. The plaintiff has filed another application being G.A. No. 3 of 2022 for recalling of the order dated 9th June, 2022 and the same is pending for adjudication.
18. The defendant has also initiated an Ejectment Suit no. 5 of 2025 against the plaintiff before the Learned Small Causes Court at Calcutta praying for recovery of possession, eviction, recovery of arrears of rent 10 and other charges and mesne profit. The plaintiff has filed the present suit praying for a decree declaring that the defendant has no right to interfere with, obstruct or create any impediment with respect to the enjoyment of the occupation of the suit property, declaring that the defendant is liable to maintain the building in terms of prevailing Rules and Regulations and other reliefs.
19. Considering the above, the defendant is directed to install wooden flush door on the inner walls of the suit premises in front of the "Lift Fascia"
similar to that of installed on the 8th Floor of the building within four weeks from the date of this order.G.A. No. 6 of 2024
20. The plaintiff has alleged that the defendant had let out the ground floor, first floor and second floor of the said building for the purpose of carrying business by the third parties and the third parties were allowed to continue hazardous business in the said premises. It is also alleged that the defendant has also let out the staircase of the said building to be used as godowns for storing materials of the third party occupiers. The plaintiff also alleged that the plaintiff has obtained report under the Right to Information Act wherein it reveals that "......No Fire Recommendation/ Fire Safety Certificate has been obtained by the plaintiff".
21. The plaintiff also alleged that originally the building consisted of G+8 floors and a terrace as per Plan no. 54 dated 17th August, 1961 issued 11 by the Kolkata Municipal Corporation, he submits that the building plan was neither revalidated nor allowed any addition and alteration to the original building plan at any point of time.
22. Considering the above, this Court is finds that the plaintiff has made serious allegation against the defendant and before passing any order in the instant application, it would be proper to issue notices upon the following authorities :
"a) The Director & SPIO, West Bengal Fire and Emergency Services, Government of West Bengal, Office of the Directorate, West Bengal Fire and Emergency Services, having its office at premises no. 13-D, Mirza Ghalib Street, Kolkata - 700 016;
b) The Municipal Commissioner, Kolkata Municipal Corporation, having its office at premises no. 5, S.N. Banerjee Road, Kolkata - 700 013;
c) Director General Building, Building Department, Kolkata Municipal Corporation, having its office at premises no. 5, S.N. Banerjee Road, Kolkata - 700 013;
d) Executive Engineer, Building Department, Borough - V, 22, premises no. Surya Sen Street.
Kolkata - 700 012;
e) Chief Electrical Inspector, Government of West Bengal, 11, N.S Road, Kolkata - 700 001."
23. On receipt of notices, the authorities are directed to submit report with respect to the building standing in premises No. 23, Biplab Trilokya Maharaj Sarani (formerly known as Brabourne Road) Kolkata -700 001:
i. Whether the building standing on premises no. 23 is constructed as per sanctioned building plan?12
ii. Whether any modification and alteration is made in the said building?
iii. If any modification or alteration is made whether the same was approved by the Kolkata Municipal Corporation?
iv. Whether the building is fitted with sufficient firefighting equipment's?
v. Whether any fire clearance certificate is issued and valid till date?
vi. Whether in the staircase any hazardous materials/articles have been kept or not?
24. Let the authorities file their report before this Court within four weeks from the date of the order. The plaintiff is directed to issue notice upon the authorities forthwith along with this order.
G.A. No. 7 of 2024
25. The plaintiff has filed the present application being G.A. No.7 of 2024 praying for forfeiting the right of the defendant to file written statement in connection of C.S. No. 254 of 2021 and to proceed the suit ex-parte against the defendant.
26. After filing of the suit, the plaintiff has lodged writ of summons for service upon the defendant through the Learned Court of District Judge, Alipore Court as well as through Postal Services. On the request of the plaintiff, the Deputy Sheriff of Calcutta has provided report to the plaintiff informing that the writ of summons sent through the Learned District Judge at Alipore is returned unserved with the endorsement "the defendant company was under lock and key". The writ of summons 13 sent through the Postal Services is returned with the endorsement "Left".
27. On 25th April, 2022, the application filed by the plaintiff being G.A. No. 1 of 2021 in C.S. No. 254 of 2021 was taken up for hearing and on the said date, the Learned Counsel for the defendant entered appearance and this Court directed the plaintiff to serve a copy of application on Advocate-on-record of the defendant.
28. Learned Advocate of the plaintiff by a letter dated 26th April, 2022, forwarded a copy of the plaint along with its annexure and copy of notice of motion to the Learned Advocate of the defendant which was duly received by the office of the Learned Advocate for the defendant on 26th April, 2022.
29. It is the case of the plaintiff that though the plaintiff has taken steps for service of writ of summons upon the defendant by both the ways but the writ of summons was returned unserved and the plaintiff has served the copy of plaint along with its annexure to the Learned Advocate for the defendant but the defendant failed to file written statement even within the outer period of 120 days and thus he prays for fixing the suit in the list of "undefended suit".
30. Learned Counsel representing the defendant submits that no writ of summons was served upon the defendant. He submits that by an order dated 25th April, 2022, this Court directed the plaintiff to serve copy of application to the Advocate-on-record of the defendant but this Court 14 has not dispensed with for lodging fresh writ of summons or taking appropriate steps for service of summons.
31. Learned Counsel representing the defendant submits that forwarding the copy of plaint and annexures to the defendant by a letter is not in compliance with Chapter VIII, Rule 3A to 6 of the Original Side Rules of this Court or Order V, Rule 1, 9(3), 10 and Rule 12 of the Code of Civil Procedure, 1908.
32. Learned Counsel for the defendant submits that if the writ of summons returned unserved, the plaintiff is required to take appropriate steps to cause service of writ of summons upon the defendant as provided under the law but without taking any appropriate steps for service of writ of summons, the plaintiff has filed the present application which is required to be dismissed.
33. As per record, the plaintiff has lodged writ of summons for service upon the defendant by both ways but the same was returned unserved. The plaintiff is claiming that the plaint along with annexures was served upon the Advocate-on-record of the defendant by a forwarding letter dated 26th April, 2022.
34. Admittedly, the writ of summons was not served upon the defendant. By an order dated 25th April, 2022, this Court directed the plaintiff to serve copy of application to the Advocate-on-record of the defendant but the plaintiff has also served the copy of plaint along with its annexures. 15 The plaintiff has not taken any steps for substituted service in terms of Order V, Rule 20(1) and 1(A).
35. Order V, Rule 20(1) provided that if the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Rule 20 (1A) also provides service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
36. In the present case, the plaintiff on receipt of report from the Deputy Sheriff of Calcutta has not taken any further steps for service of writ of summons upon the defendant. Service of summons in a suit, in order to constitute a starting point for the time available for filing of a written statement, has to be meaningful service. In other words, the time for filing written statement would commence from the date when the plaint along with documents is provided to the defendant. 16
37. In the present case admittedly, the writ of summons were returned unserved by both the ways and the plaintiff has not taken any further steps for service of summons upon the defendant as per the provisions of law. This Court has not passed any order for service of plaint and documents upon the defendant nor has this Court dispensed with for lodging fresh writ of summons or taking appropriate steps for substituted service of summons upon the defendant.
38. This Court is not satisfied with the service of writ of summons upon the defendant. Thus, the suit cannot be placed in the list of "undefended suit". The plaintiff is directed to take appropriate steps for service of writ of summons upon the defendant forthwith.
39. In view of the above, G.A. No. 1 of 2021 and G.A. No 7 of 2024 are disposed of. G.A. No. 6 of 2024 be listed on 25th July, 2025.
(Krishna Rao, J.)