1. The plaintiff has filed an application being G.A. No. 1 of 2021 praying
2. The plaintiff has filed another application being G.A. No. 6 of 2024
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."
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."
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.
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
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
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.
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
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
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.
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
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?
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.
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
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
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.
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.
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.)
