Calcutta High Court (Appellete Side)
Smt. Rukmani Debi & Ors vs Smt. Mula Debi & Ors on 3 August, 2018
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1 03.08.2018
IN THE HIGH COURT AT CALCUTTA S/L-4 (CIVIL REVISIONAL JURISDICTION) Ct-5 APPELLATE SIDE (AD) C.O. 2329 of 2015 (Assigned) Smt. Rukmani Debi & Ors.
vs. Smt. Mula Debi & Ors.
Mr. Nirbanesh Chatterjee, Adv.
Mr. Nisith Mukherjee, Adv.
... for the petitioners.
Mr. Ayan Mitra Adv.
Mr. Nilan Kanti Mondal, Adv.
Mr. Chandan Mondal, Adv.
... for the defendant no.1.
This present revisional application at the instance of the defendants in the eviction suit is directed against the Order No.54 dated April 23, 2015 passed by the learned Judge, 3rd Bench, Small Causes Court at Calcutta in Ejectment Suit No. 471 of 2004.
By the impugned order, the learned Court below rejected the application filed by the defendants/ petitioners under Order No.39 Rule 7 of the Code of Civil Procedure seeking appointment of an Advocate Commissioner to inspect the premises no.9, Zuriff Lane, Kolkata - 700 006 and to file a report with regard to the points mentioned in Schedule 'A' to the application.
The ground urged by the defendants/petitioners in their 2 application under Order 39 Rule 7 of the Code is that in the eviction suit, inter alia, on the ground of reasonable requirement, the opposite parties/plaintiffs have omitted to mention about their ownership in respect of the said premises no. 9, Zuriff Lane, Kolkata - 700 006. The opposite parties/plaintiffs contested the said application on the ground that the said property at premises no. 9, Zuriff Lane, Kolkata
- 700 006 is presently owned by the opposite party/plaintiff no.2 alone.
The learned Court below rejected the said application of the present petitioners, the defendants in the eviction on the ground that it is not in a position to impose or dictate the terms upon the plaintiffs to inspect any property against their wish. It was further held that if during the final hearing of the suit it is found that the plaintiffs are in occupation of any other suitable accommodation at 9, Zuriff Lane or elsewhere they shall remain liable for the legal consequence for such intentional suppression of material facts.
The fact remains that opposite party /plaintiff no.2 still remains one of the owners of the suit property, but if he has become exclusive owner of the property at premises no. 9, Zuriff Lane, Kolkata - 700 006 then at the highest his requirement of the suit property in the eviction suit has to be ignored by the Court. The ownership of the said property at premises no. 9, Zuriff Lane, Kolkata - 700 006 is to be proved 3 at the trial of the eviction suit.
Therefore, the present petitioners, as the defendants in the eviction suit are entitled to obtain an order for appointment of the Commissioner to inspect the said property at premises no. 9, Zuriff Lane, Kolkata - 700 006 before whom the opposite party/plaintiff no.2 may show his exclusive title in respect of the said property.
For the reasons as aforesaid, the impugned order dated April 23, 2015 insofar as the same rejected application of the present petitioners, the defendants in the eviction suit for appointment of the Commissioner in respect of the property at premises no. 9, Zuriff Lane, Kolkata - 700 006 is set aside.
The learned Court below is directed to expeditiously appoint an Advocate Commissioner for the purpose of inspecting at premises no. 9, Zuriff Lane, Kolkata - 700 006.
It appears that since the year 2004, the ejectment suit is pending disposal. Accordingly, the learned Court below is requested to dispose of the Ejectment Suit as expeditiously as possible, preferably within a month of February, 2019.
With the above directions, C.O. 2329 of 2015 stands disposed of.
There will be no order as to costs.
Certified website copy of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
4(Ashis Kumar Chakraborty, J.)