Calcutta High Court (Appellete Side)
Haider Ali & Anr vs Abdul Jabbar on 10 February, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
1
In The High Court At Calcutta
10-02-2017 Civil Revisional Jurisdiction
sh-7
.
CO 4481 of 2016 Haider Ali & Anr.
v.
Abdul Jabbar Mr. Sanjib Seth ... for the petitioners.
Mr. Hiranmoy Bhattacharyya ... for the opposite party.
This revisional application is directed against the order dated May 4, 2016 passed by the Civil Judge(Junior Division), 3rd Court at Howrah in Title Suit No. 27 of 2006.
By the impugned order, the learned Court below has allowed the application filed by the opposite party, as the defendant of the eviction suit, under Order XXXIX Rule 7 of the Code of Civil Procedure, 1908 ( in short " the Code") by appointing a learned advocate commissioner to inspect the building at Premises No. 28/2, Roshan Guldar Lane, 2 P.S. and District- Howrah.
In the eviction suit the petitioners have claimed eviction of the opposite party from the suit property, inter alia, on the ground of their reasonable requirement of the suit property. It is submitted by the petitioners that by order dated January 14, 2009 the learned Court below allowed an application filed by them under Order XXXIX Rule 7 of the Code for inspection of the entirety of the said building and in terms of the said order the learned advocate commissioner inspected the said building and filed his report before the learned Court below. It is the further case of the petitioners that since the opposite party did not file any objection to the said report filed by the learned advocate commissioner appointed by the order dated April 4, 2016 the subsequent application filed by the opposite party for appointment of an advocate commissioner was not maintainable and the learned Court below has committed an error of law in allowing the said application.
From the records, however, it appears that after the learned advocate commissioner appointed by the order dated May 4, 2016 filed his report before the learned Court below stating that the said building is a three 3 storied building, the opposite party filed an additional written statement in the suit alleging that the petitioner has since made the said building as a five storied building. On the basis of the said averment made in the written statement the opposite party filed the application under XXIX Rule 7 of the Code for appointment of the advocate commissioner. By the impugned order, the learned Court below has appointed the learned advocate commissioner to hold inspection of the said building only on the following three points :-
1. Whether the suit property is G+3 or G+4 or G+5?
2. The number of rooms available in the 4th floor or 5th floor if the said floor is found?
3. Rough sketch map of 4th floor or 5th floor if found?"
Having considered the materials on record although, it appears that the opposite party filed his application under Order XXXIX Rule 7 of the Code at the stage when the plaintiff's first witness has already started to adduce evidence, but in view of the averment made by the opposite party in his additional written statement, I do not find any reason to hold that the learned Court below 4 committed any error of law in passing the impugned order. Accordingly, the revisional application, being CO 4481 of 2016 stands rejected. However, there shall be no order as to costs.
The learned advocate commissioner appointed by the learned Court below by the impugned order dated May 4, 2016 is directed to complete the commission work and to file his report before the learned Court below within a period of four weeks from the date of communication of this order.
Mr. Sanjib Seth, learned advocate appearing in support of the application submitted that the petitioners, as the plaintiffs in the eviction suit shall render all assistance to the learned advocate commissioner to comply with the above direction passed by this Court. The interim order already passed also stands vacated.
Certified website copies of the order, if applied for, be urgently made available to the parties on usual undertaking.
(Ashis Kumar Chakraborty, J) 5