Sri Jawahar Baitha vs Pradip Kumar Sett & Anr
2023 Latest Caselaw 3480 Cal

17.5.2023

Ct. no. 652 sb C.O. 1654 of 2019 With CAN 1 of 2022 With CAN 2 of 2022

Sri Jawahar Baitha Vs.

Pradip Kumar Sett & Anr.

Mr. Sibendra Nath Chatterjee Ms. Gargi Acharyya ...for the Petitioner

Mr. S.N. Dutta Mr. Saikat Karmakar ...for the Opposite Parties

In Re: CAN 2 of 2022

Affidavit-in-opposition filed by the opposite party to

the application for restoration is taken on record.

This is an application for condonation of delay in

filing an application for restoration under Section 5 of the

Limitation Act. The grounds shown in the application

appears to be satisfactory and accordingly, the delay is

condoned.

CAN 2 of 2022 is accordingly disposed of.

In Re: CAN 1 of 2022

Affidavit-in-opposition filed by the opposite party is

taken on record.

This is an application for restoration of the

application being C.O. 1654 of 2019 which was dismissed

for default on 20th September, 2019. The petitioner

contended that he was not aware about the dismissal

order and thereafter, from March 2020, complete

lockdown started throughout India and for which she

could not take steps in time. There is no intentional

latches or negligence on the part of the applicant and

accordingly, prayed for restoration of the application. The

grounds shown in the application appears to be

satisfactory and accordingly, C.O. 1654 of 2019 is

restored in its original file with original number.

CAN 1 of 2022 is accordingly disposed of.

In Re: C.O. 1654 of 2019

This is an application under Article 227 of the

Constitution of India which is taken up for hearing on

consent given by both the parties.

In this application, the petitioner/defendant has

challenged the order no. 124 dated 27.3.2019 passed by

the learned Additional District Judge, 5th Bench, City

Civil Court, Calcutta in Title suit no. 1023 of 2003. By the

impugned order, learned court below was pleased to

reject the defendant's application under Order 39 rule 7

with cost of Rs. 3,000/-.

Being aggrieved by that order, the petitioner herein

contended that predecessor-in-interest of the petitioner

Anganu Baitha and Chunilal Baitha (Dhobi) were jointly

monthly tenants in respect of a godown situated at 11,

Ho-chi-Minch Sarani, Kolkata-700071. The petitioner

along with his other covered area residing in the said

premises for last 40 years as the monthly tenant in

respect of the premises under the Administrator General

and Official Trustees of Government of West Bengal and

presently he is paying monthly rent of Rs. 120 with the

office of the learned Rent Controller, Calcutta. The

plaintiff/opposite parties herein are also claiming to be

resident in the ground floor at the said premises as

monthly tenant under the administrator General. They

are not the landlords of the petitioner and they also enjoy

the same status of tenant.

All of a sudden, the opposite parties by lawyer's

notice dated 22. 2.2022 asked the petitioner herein to

vacate the said premises and on the basis of said notice,

they have filed the aforesaid suit for recovery of

possession against the present petitioner. The petitioner

filed written statement and denied all material

allegations. He further submits that on behalf of the

official trustees, one witness deposed before the court and

he stated in his evidence that item no. 6 of the tenancy

list shows Chunilal Baitha (Dhobi) as a tenant in respect

of godown but he was unable to locate godown of

Chunilal Baitha (Dhobi). Now in order to pin point the

existing accommodation of the petitioner, the petitioner

herein filed an application under Order XXXIX rule 7

before the court below for ascertainment of the entire

tenanted rooms of the opposite parties and the room of

the defendant/petitioner left by their predecessor-in-

interest, Chunilal Baitha (Dhobi). However, learned court

below after hearing both the parties, was pleased to reject

the said application. Learned counsel for the petitioner

submits that in order to adjudicate the real controversy

between the parties, the local inspection commission is

very much needed and without appointment of an

advocate Commissioner, the physical possession of the

tenanted room of the petitioner and also the physical

tenanted portion of the opposite parties cannot be

ascertained.

Learned counsel for the opposite parties raised

strong objection and contended that purpose of local

inspection commission can never be fishing out evidence

or to prove possession of either party in connection with

suit property. She further submits that the evidence of

both the parties have already been concluded and only to

drag further proceeding of the suit and to cause delay in

final disposal of the suit, he has preferred this application

with mala fide intention, which is liable to be rejected.

The order impugned passed by the court below is justified

and dose not call for any interference. In this context, he

relied upon paragraph 13 of the judgment of a coordinate

bench of this court passed in Harendra Prasad Shaw &

Ors. vs. Bimal Naskar reported in (2009) 2 CHN 404.

I have considered the submissions made by both

the parties. On perusal of the schedule of commission

work, it appears that the petitioner has prayed for local

inspection commission to ascertain the mode of

accommodation available to the plaintiff on the ground

floor and the mode of accommodation available to the

petitioner in respect of one room and mode of user thereof

on the ground floor of the said suit premises at 11, Ho-

chi-Minch Sarani. It clearly reveals from the schedule of

the commission work that the object of filing such

application is fishing out evidence which is not

permissible under the law.

Needless to say that the primary object of local

inspection commission is to keep on record, the existing

condition of the property, so that if the same is subjected

to any change later on, any deterioration or mischief by

any party or other agency, that can be known by the

court, if and when desired or required.

It is not permissible for the court to appoint a

Commissioner under order XXXIX rule 7 for collecting

evidence in the suit, nor such commission can be used as

substitute of oral or documentary evidence.

Present application for the local inspection

commission filed after the recording of evidence. No

attempt was made to file application since the filing of

written statement. The application appears to have been

filed to fill up lacuna in evidence and as such the order of

rejection passed by the court below is justified and proper

and does not call for interfernce.

Accordingly, C.O. 1654 of 2019 is dismissed.

Learned court below is directed to make expeditious

disposal of the pending suit and to conclude the entire

proceeding preferably within a period of twelve weeks

from the date of communication of the order.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

requisite formalities.

(Ajoy Kumar Mukherjee, J.)