Calcutta High Court (Appellete Side)
Birendra Kumar Jaiswal vs Sm. Narbada Devi Gupta & Anr on 19 September, 2016
1
In The High Court At Calcutta
19-09-2016 Civil Revisional Jurisdiction
sh-7
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CAN 8997 of 2016 CO 3292 of 2016 Birendra Kumar Jaiswal v.
Sm. Narbada Devi Gupta & Anr.
Mr. P.N.Palit Mr. Pranab Palit ... for the petitioner.
Mr. Abhijit Roy Ms. Rafat P Ekram ... for the respondents.
CAN 8997 of 2016 It is not required for an application under Article 227 of the Constitution of India to be accompanied with a separate application under Section 5 of the Limitation Act, 1963. However, while filing the revisional applications to challenge the order dated July 29,2016 passed by the learned Judge, 10th Bench, City Civil Court at Calcutta the petitioner has also filed this application under Section 5 of the Limitation Act, praying for condonation of 10 days 2 delay in filing the revisional application. Since there is no requirement of filing a separate application under Section 5 of the Limitation Act, with consent of the parties CAN 8997 of 2016 is treated as on day's list and the same is disposed of as not pressed.
Re: CO 3292 of 2016 In the revisional application, the plaintiff in Title Suit No. 1330 of 2004, pending before the Court of the learned Judge, 10th Bench, City Civil Court at Calcutta has challenged the order dated June 29, 2016 passed by the learned Court below.
By the impugned order the learned Court below rejected an application filed by the plaintiff-petitioner for appointment of an Engineer Commissioner on the ground that the same was filed at the argument stage of the suit. The other ground set forth by the learned Court below in the impugned order is that the plaintiff-petitioner has alleged that the defendants-opposite parties have put up a wall by obstructing his passage, whereas, he is present in Court.
On September 5,2016 when this application was taken up for hearing the plaintiff-petitioner was directed to serve a copy of this application on the defendants- 3 opposite parties. Today when this application is taken up for hearing Mr. Abhijit Roy, learned advocate appeared for the opposite parties and prayed for adjournment of hearing of this application for one week. However, Mr. P.N. Palit appearing for the petitioner opposed the prayer for adjournment of hearing of this application. Mr. Palit strenuously contended that the evidence of the parties to the suit is yet to be concluded and the impugned order passed by the learned Court below is vitiated by surmises and conjectures.
Per contra, Mr. Roy appearing for the opposite parties contended that inasmuch as it is the case of the plaintiff- petitioner himself that a wall has already been constructed, the impugned order passed by the learned Court below suffers from no infirmity and the inspection of a learned Advocate Commissioner shall not enure to the benefit of the plaintiff-petitioner. He strenuously contended that the application filed by the petitioner for appointment of Engineer Commissioner, under Order XXXIX Rule 7 was not maintainable and the impugned order passed by the learned Court below is based on appreciation of facts which should not be interfered by this Court in exercise of jurisdiction under Article 227 of 4 the Constitution of India.
In order to decide the above rival contentions of parties, the relevant portion of the impugned order is extracted below:
"On perusal of entire record I find that it is very disgusting that plaintiff is pilot of the Suit and he should be vigilant to complete the proceeding of the Suit quickly. Whereas, at the argument stage he filed this petition only on the ground that one wall has been constructed for his obstruction, whereas, he is present before the Court. It clearly shows that the intention of the plaintiff in this Suit. Considering my above observation I think it a fit case in which this petition should be rejected."
However, from a perusal of the plaint filed in the suit it appears that the plaintiff petitioner has mentioned about the wall and he has also prayed a relief in the suit for removal of the wall. In his application the plaintiff petitioner prayed for appointment of an Engineer Commissioner to inspect the wall, which has been rejected by the learned Court below. Further, both Mr. Palit and Mr. Roy submitted that an application of the plaintiff- petitioner for leave to adduce further evidence is pending before the learned Court below and the defendants are yet to start adducing evidence through their witnesses. They further submitted that when the evidence of the parties is not yet completed, there was no scope for fixing the suit 5 for argument on July 08, 2016 as has been directed by the impugned order.
In view of aforementioned undisputed facts, the finding of the learned Court below already recorded above, for rejecting the petitioner's application for appointment of Engineer Commissioner is nothing but perverse. Moreover, the language used by the learned Court below in the impugned order, as recorded above does not conform to the standard to be maintained by Court. The discretion vested in Court for deciding an application for appointment of Engineer Commissioner, as is the case with all judicial discretion, to be exercised judiciously in the background of all the relevant facts and circumstances of the case and not on the basis of surmises or conjectures. In the facts of the present case, as already discussed above, it is evident that the learned Court below passed the impugned order without considering the relevant facts of the case and the impugned order is vitiated by surmises and conjectures.
For all the foregoing reasons, the impugned order dated July 29, 2016 passed by the learned Court below, in Title Suit No. 1330 of 2004 is set aside. The learned Court below, is directed to rehear the application filed by 6 the plaintiff-petitioner for appointment of Engineer Commissioner and dispose of the same with reasons, as expeditiously as possible, preferably within November 15, 2016.
At this juncture, it may also be noted that it is well settled that mentioning of wrong provision of a statute in an application filed before the Court is immaterial and for deciding an application the Court has to consider whether the averments made in the application sufficiently disclose the power of the Court to pass an order, as prayed for by the applicant. Thus, while considering prayer of the plaintiff petitioner for appointment of Engineer Commissioner on merit, the learned Court below shall not be guided by the provisions of the Code mentioned in the description of the application and shall decide the application on the basis of averments made in the petition.
With the above directions, the revisional application CO 3292 of 2016 stands disposed of. However, there shall be no order as to costs.
Let, a plain copy of this order duly countersigned by the Assistant Registrar (Court) be made available to the learned advocates of the respective parties on the usual 7 undertaking.
(Ashis Kumar Chakraborty, J)