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Calcutta High Court (Appellete Side)

Smt. Gita Rani Patra vs Sri Kalipada Naskar on 24 September, 2014

Author: R. K. Bag

Bench: R. K. Bag

                                            1

     14.
24.09.2014

.

Ct. No. 33

F.B. C.O. 4094 of 2013 Smt. Gita Rani Patra

-Vs.-

Sri Kalipada Naskar Mr. Ashoke Banerjee, Mr. Sk. Md. Galib ... For the Petitioner.

_________ The petitioner has preferred this revisional application under Article 227 of the Constitution of India challenging the order dated 18th September, 2013 passed by learned Civil Judge (Junior Division), 4th Court, Howrah in Title Suit No. 263 of 2012, by which learned Judge of the Court below rejected the application of the petitioner under Order 26 Rule 9 of the Code of Civil Procedure.

It appears from the materials on record that the petitioner instituted Title Suit No. 263 of 2012 against the opposite party praying for declaration, permanent injunction and mandatory injunction. In the said suit the petitioner filed an application under Order 26 Rule 9 of the Code of Civil Procedure praying for local investigation of the property in question to ascertain the area of encroachment on 'D' and 'E' scheduled property.

Having heard learned counsel for the petitioner and on consideration of the description of 'D' and 'E' scheduled property of the plaint and the impugned order challenged in this revision, I am of the view that 'D' and 'E' scheduled property should be properly described in the plaint for the purpose of ascertaining the area of encroachment by way of local investigation. In the absence of proper 2 description of the 'D' and 'E' scheduled property, it may not be possible to relay the suit plot and to identify the area of encroachment by way of local investigation.

Accordingly, the petitioner/plaintiff is at liberty to describe 'D' and 'E' scheduled property properly in the plaint and pray for local investigation afresh by filing an application under Order 26 Rule 9 of the Code of Civil Procedure.

Learned Civil Judge (Junior Division), 4th Court, Howrah is directed to give opportunity to the petitioner/plaintiff to take appropriate steps before the Trial Court in the light of the observations made in this order.

With the above observation the revisional application is disposed of.

Urgent certified Photostat copies of this order, if applied for, be given to the petitioner on priority basis after compliance with all necessary formalities.

(R. K. Bag, J.)