Calcutta High Court (Appellete Side)
Sri Pawan Kumar Agarwal @ Pawan Agarwal vs Sri Parbati Chorone Roquitte on 31 July, 2015
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1 31.07.2015
C.O. 2109 of 2015 ss (Assigned) Sri Pawan Kumar Agarwal @ Pawan Agarwal Vs. Sri Parbati Chorone Roquitte Mr. Debasish Roy Mr. Vinay Kumar Purohit ... For the petitioner Mr. Jiban Ratan Chatterjee Mr. Souradipta Banerjee Mr. Amaresh Dhar Mr. Subhajit Mallick ... For the opposite party Order impugned passed by the learned Judge, Sixth Bench, Small Causes Court at Calcutta in Ejectment Suit No.494 of 2010 refusing prayer of the defendant/petitioner to render police assistance at the time of holding commission is under challenge in this revisional application.
Mr. Roy, learned Counsel appearing for the petitioner submits that by a previous order dated 22nd March, 2013 one Advocate- commissioner was appointed to hold commission. He submits that at the time of holding commission, learned Advocate for the defendant requested the Commissioner to identify the suit premises being shop room No.3 and thereafter other commission work to be conducted.
Mr. Roy submits that since the commissioner did not accept such suggestion, learned Advocate for the petitioner objected. He submits that by the order impugned the learned Court below modified the previous order dated 22nd March, 2013 to the extent that Engineer-Commissioner will inspect the structure of the entire portion of the ground floor of the suit building occupied by the defendant, to compare the same with the plan of the suit building, to be supplied by the plaintiff, and to submit report.
Mr. Roy submits that this order is causing prejudice because there is other tenancy and for which the plaintiff/opposite party obtained decree.
2Mr. Roy submits that this portion of the order should be set aside.
Mr. Chatterjee, learned Senior Counsel appearing for the plaintiff/opposite party submits that the defendant/petitioner has in fact encroached a portion of room No.2. He has made unauthorised construction on common passage and that is why the learned Court below modified the previous order and directed the Engineer- Commissioner to inspect the structure of the entire portion of the ground floor of the suit building and to compare the same with the plan to be submitted by the plaintiff.
Mr. Chatterjee submits there should not be any objection against it, if the defendant is claiming tenancy in respect of the room No.3 and if he has not encroached any portion of room No.2 or the common passage. There should not be any complexity even if the entire ground floor is commissioned.
Mr. Chatterjee submits that there is allegation of unauthorised construction also. He submits the learned lawyer for the defendant is creating trouble for which commission work is stalled.
Mr. Chatterjee submits Ejectment Suit is pending since 2010. According to him, the order passed by the learned Court below ought not to be interfered with.
Considered the submissions made by the learned Counsel appearing for the parties. It is on record that the petitioner's alleged there is encroachment on a portion of room No.2 and also raising construction on common passage. At the time of holding commission work the learned Advocate for the defendant obstructed such commission work. Learned Court below considering the entire matter has rejected the prayer for police help. However, it is in the opinion of the learned Court below that inspection of the entire ground floor is to be made and a comparison is to be made with the partition plan submitted by the plaintiff. 3
In my view, there is no illegality and/or material irregularity in the order passed by the learned Court below.
Since Mr. Roy on behalf of his client gives an undertaking that there would be no obstruction by the learned Advocate for the defendant, this Court is not passing any order restraining the learned Advocate for the defendant from being present on spot at the time of commission.
It is recorded that the learned Advocate for the defendant would not cause any obstruction at the time of carrying out inspection work. In case any such obstruction is created, the plaintiff/opposite party is permitted to file a contempt application before this Court.
This revisional application is of no merit and is, thus, dismissed.
Considering the fact that the matter is pending since 2010 this Court directs the Engineer-Commissioner to submit report by four weeks, if necessary, he will do commission work on day to day basis. Learned Court below is directed to dispose of the suit within nine months from the date of submission of the commissioner's report.
(Ashoke Kumar Dasadhikari, J.)