Calcutta High Court (Appellete Side)
Krishna Nath Ghosh & Ors vs Monoj Bhakat Alias Monoj Kumar Bhakat & ... on 3 July, 2017
Form No.J(2) IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Present : The Hon'ble Mr Justice Mir Dara Sheko C.O.No.4098 of 2016 Krishna Nath Ghosh & Ors.
-vs-
Monoj Bhakat alias Monoj Kumar Bhakat & Ors.
Mr. Indranath Mukherjee ....for the petitioners
Mr. Anit Kumar Rakshit
Mr. S.S. Bayard ...for the opposite party no.1
Heard on : July 3, 2017
Judgment on : July 3, 2017
Mir Dara Sheko, J: The application under Article 227 of the Constitution of India has been directed against Order No.69 dated August 20, 2016 passed by learned Civil Judge (Sr. Division) at Serampore, Hooghly rejecting an application under section 151 of the Code of Civil Procedure filed by the defendant- petitioners and allowing an application under Order 26 Rule 9 CPC filed by the opposite party no.1-plaintiff in Title Suit No.271 of 2013.
Heard Mr Mukherjee representing the petitioners-defendants (hereinafter to be called on as the petitioners). Heard also Mr Rakshit assisted by Mr Bayard appearing for the opposite party no.1-plaintiff (hereinafter to be called on as the opposite party).
Taking note from the materials on record, including the impugned order, the backdrops of the case are found as follows.
a) The petitioners have filed a suit (T.S. No.102 of 2010) against the opposite party for declaration and permanent injunction.
b) The opposite party also filed a suit being T.S. No.155 of 2010 (renumbered as T.S. No.271 of 2013) over the self-same subject property seeking declaration and permanent injunction.
c) Though in both the suits parties and subject property are the same and as this court has been apprised of order of learned District Judge, Hooghly, both the above-mentioned suits are being tried analogously by learned trial court, the dispute arose while the opposite party is claiming easement right for the purpose of use of passage and drain in between the portions of the parties.
d) Contention of the petitioners is that in the deed of purchase, acquired by the opposite party, there was no existence of any such passage where the alleged right of easement or quasi-easement can be exercised.
e) Rival contention, of course, is there as set out by the opposite party who claims easement right over such disputed portion which has been specified in the schedule A1 of the plaint of T.S. No.271 of 2013.
f) Over the issue the opposite party had filed one application under Order 26 Rule 9 CPC. Learned trial court at that stage observed "claim of easement right does not come under the purview of survey commission", and rejected the said prayer of the opposite party.
g) Being aggrieved the opposite party moved this court with a revisional application being CO No.1184 of 2014 which was disposed of on December 24, 2014 without interfering with the rejection order of learned trial court with a rider which is set out below:-
"In view of the relevant observation in the order impugned and since the petitioning plaintiff's right to seek local investigation has not been prohibited at a subsequent stage, CO 1184 of 2014 is disposed of without interfering with the order impugned dated February 14, 2014 but by leaving the plaintiff free to apply for local investigation if the oral evidence of the parties warrant the same. If such application is filed at a subsequent stage, the trial court will consider the same in accordance with law uninfluenced by the order impugned herein."
h) Meanwhile the petitioners filed an application under section 151 CPC alleging that the opposite party had put their windowpanes outside their window by making aerial encroachment and prayed for removal of those windowpanes and to restore the building so far as windowpanes are concerned in its original position.
i) The opposite party in his turn filed an application under Order 26 Rule 9 CPC praying before learned trial court for allowing all the points, including point no.4 which is relevant to the prayer made under section 151 CPC. Learned trial court upon hearing disposed of both the applications by one composite order on August 20, 2016 in allowing the prayer of local investigation and rejecting the prayer under section 151 CPC.
Taking note of the above backdrops and the very lis pending in both the suits being tried analogously by learned trial court, provision under Order 26 Rule 9 CPC has been made so that either of the parties to the proceeding at any stage for elucidation of the subject matter may be at liberty to pray for opting local investigation. Learned court in turn apprising the propriety of the prayer and to reach at the just and proper decision in respect of the lis may allow or reject it.
Mr Rakshit submitted that his client had been compelled to file the instant application under Order 26 Rule 9 CPC with a view to combating the application under section 151 CPC filed by his counterpart. Because, according to them, for ascertaining the alleged aerial encroachment the prayer under section 151 CPC which was, in effect, in a mandatory nature would not be considered without scientific investigation.
Mr Mukherjee ventilates his exception that learned trial court, instead of rejecting his clients' prayer under section 151 CPC, could have kept as pending; but since it was rejected, his clients have become aggrieved; and that is why this revisional application has been filed.
The legal situation is admitted that there cannot be estoppel against rule of law provided in the Code itself. Therefore prayer under Order 26 Rule 9 CPC can be made at any stage of the proceedings. This court, however, observes that while over the self-same issue (barring the allegation of aerial encroachment) both parties had come up to this court and there was clear indication by preserving the right also of the opposite party as quoted above, the same must have to be followed not only by the parties but also by learned trial court. Had it been the stage that evidence was started and to confirm any dispute, if any, would come out in such evidence, then liberty granted by this court in earlier CO No.1184 of 2014 learned trial court could have exercised its judicial discretion.
However, since the result of CO No.1184 of 2014 ought to have been kept in mind by learned trial court instead of rejecting one and allowing the other, the dispute between the parties would be aggravated, instead of decreasing the scope of further litigation between the parties.
Therefore, the impugned order dated August 20, 2016 passed in Title Suit No.271 of 2013, having committed some lapses in the decision-making process by making departure from earlier direction, is set aside and quashed, meaning thereby both the applications under section 151 CPC and Order 26 Rule 9 CPC would remain pending for the present.
Learned trial court thereby, if there is no pending interlocutory matter of any nature, shall place the suit for peremptory hearing and during or after recording evidence of the parties if the circumstance so demands; and if either of the parties does press such of their respective prayer, then learned trial court would be free to deal with the same independently to record appropriate order. However, since both the parties have filed their independent suit over the same subject matter, learned trial court is directed to expedite the process and to dispose of the suits in accordance with law, after disposing of the interlocutory matter, if any, pending within a time-bound schedule to be framed by him.
With the above observations, the CO No.4098 of 2016 stands disposed of without any order as to costs.
The department is directed to communicate this order to learned trial court at once so that learned trial court may proceed in accordance with the directions made above. Be it mentioned that stay order, if any, passed by this court in both the suits, stands vacated.
Certified photostat copy of this order, if applied for, shall be given to the parties.
[Mir Dara Sheko, J] Subrata