Byomkesh Chakraborty & Ors vs Sk. Sajahan
2021 Latest Caselaw 6031 Cal

Citation : 2021 Latest Caselaw 6031 Cal
Judgement Date : 3 December, 2021

Calcutta High Court (Appellete Side)

Byomkesh Chakraborty & Ors vs Sk. Sajahan on 3 December, 2021

11. 03.12.2021
      Ct. No. 21
        ab



                                       C.O. 2047 of 2021


                                  Byomkesh Chakraborty & Ors.
                                             -VS-
                                         Sk. Sajahan

                                   (Through Video Conference)



                   Mr. Sujit Bhunia
                                                   ... for the petitioners

                   Mr. Manoj Bhakta
                                                   ...for the Opposite Party


                         The petitioners landlords/defendants of the Title

                   Suit No. 742 of 2018 being aggrieved by the order

                   passed by the learned Civil Judge (Junior Division), 1st

                   Court, Paschim Medinipur, allowing the prayer of the

                   plaintiff/opposite party for local inspection of the

                   disputed property on 16.11.2021 has preferred this

                   application.

                         Contention of the petitioner is that the opposite

                   party being a trespasser has filed the above mentioned

                   suit for declaration of his tenancy right over the

                   disputed property and permanent injunction restraining

                   the rightful owners/petitioners from interfering with his

                   peaceful possession over the same. And where he has

                   prayed for local inspection of the suit property not only

                   once but thrice. The first application was allowed ex-
                              2




parte and such order was set aside by the Hon'ble High

Court in C.O. no. 738 of 2019 on 13.6.19, with a liberty

to pray for local inspection afresh before the court below

within one month from the date of communication of

the order and to dispose of the same after hearing both

the parties and after adhering to the principle of natural

justice.

      The opposite filed the second application for

inspection as directed by the Hon'ble High Court, but

much after the expiry of period of one month and which

was rejected with the finding only experts can conduct

the inspection and not by an advocate commissioner.

Again third application was and which was allowed vide

impugned order and allowed Advocate commissioner to

hold inspection with the help of a Structural Engineer

or with the help of a Building Surveyor. Thus learned

advocate   for   the   petitioners   contented   the   order

impugned is bad, illegal and with material irregularity

and pray for setting aside of the same.

      Ld. Advocate for the opposite party contended

disputed premises is in need of immediate repair

otherwise would be very unsafe for the tenant/ opposite

party to run his tailoring business therefrom and for

which purpose local inspection is required to bring on

record the present condition of the tenanted structure.

Requests of the tenant to the laodlords petitioners for

repair have fell on deaf ears. Rather who have
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threatened the tenant with eviction. The learned court

below passed the impugned order not only the prayer of

the tenant, but also the report of the concerned BLLRO

in respect of the present condition of the tenanted

structure.

      Perused the photographs which the tenant has

filed in the court this day and which show indeed the

tenanted structure is a single structure with tile roof.

The front side made of brick wall with iron shutter and

remaining back side structure made of mud and

bamboo. The back of the structure specially made of

mud in totally damaged and dilapidated condition and

not possible to use the same.

      It is settled law a tenant has right to stay in the

tenanted premises until and unless he is evicted by due

process of law. Law also demands that a lawful tenant

has right to enjoy the tenanted premises in good and

tenantable condition for which purpose the tenancy was

created. So long the tenancy subsists the tenant may

with prior consent of the landlord can repair the

tenanted premises and make it habitable, if the

landlords fail to keep the premises in good and

tenantable condition.

      From the materials in record, it is seen the

petitioners landlords have failed to keep the premises in

good and tenantable condition and compelled the

tenant to move the court for getting the tenanted
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structure repair to make it habitable so long his

tenancy is not terminated and to get such work done he

has   prayed    for   local   inspection   of   the   tenanted

structure. So, here this court does not find any illegality

or material irregularity in the order impugned.

      Further, according to Learned Advocate for the

opposite party Advocate commissioner who has been

appointed    vide     the   impugned   order    has    already

conducted local inspection of the suit property on

28.11.2021

and awaiting submission of report. He files

copy of notice served on him and to which Learned

Advocate for the petitioners raise no objection. In view

of such development during the pendency of this

revisional application makes the present application not

maintainable.

Accordingly, C.O. no. 2047 of 2021 stands

dismissed.

Interim order, if any, stands discharged.

There will be no order as to costs.

In view of the order made above affidavits are not

invited. Allegations made shall be deemed to be denied.