Calcutta High Court (Appellete Side)
Beleghata Nabamilan Club vs Purnima on 3 December, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1 Sn 3.12.19 C.O. 3840 of 2019 37 BELEGHATA NABAMILAN CLUB VS. PURNIMA KUNDA & ANOTHER Mr. Aniruddha Chatterjee Mr. Tarak Nath Halder Mr. Sagnik Chatterjee ..for the petitioner Mr. Sayan Chattopadhyay ..for the opposite parties The defendant in an Ejectment suit has filed this application being aggrieved of an order dated September 9,,2019 passed by the learned Civil Judge(Senior Division) at Sealdah, South 24 Parganas, in Ejectment Appeal No.11 of 2018.
By the order impugned, the application under Order 26 Rule 9 of the Code of Civil Procedure filed by the defendant in Ejectment appeal no. 11 of 2018 arising out of Ejectment suit no. 49 of 2009 was rejected.
The plaintiffs/opposite parties filed a suit for eviction against the defendant on the ground of reasonable requirement. The said suit was decreed by the learned Civil Judge, Junior Division, 1st Court, Sealdah, by a judgement 2 and decree on March 28, 2018.
The plaintiffs got a decree of eviction of the defendant from the suit property and the defendant was directed to quit and deliver vacant possession to the plaintiffs/opposite parties within 30 days of the order, in default, the plaintiffs/opposite parties were given liberty to proceed for execution of the decree.
Aggrieved by the said judgement and decree, the defendant/ petitioner filed an Ejectment appeal no. 11 of 2018 before the learned Senior Civil Judge at Sealdah. In the said appeal, the defendant filed an application under Order 26 Rule 9 of the Code of Civil Procedure praying for appointment of Engineer Commissioner in order to ascertain whether the shop room which was the subject matter of the suit could be used as a garage after making adjustments. The said application was rejected on the ground that the Commission was prayed for extraneous consideration and there was no requirement for elucidating any matter in dispute.
It is submitted by Mr. Chatterjee, learned 3 Advocate appearing on behalf of the appellant/defendant that the application was filed before the learned Court of appeal below because the learned Trial judge had committed an error by not taking into consideration the report of the Civil Engineer, i.e., DW‐3, on the ground that the said Civil Engineer was not appointed by the Court but was the witness of the defendant. It is submitted by him that the report prepared by DW‐3 was marked as Exhibit, namely, Exhibit‐H and DW‐3 also deposed and proved his document, yet the learned Trial Judge did not believe the said document.
In view of the findings of the learned Trial Judge the defendant apprehends that the learned Court of appeal below will also not consider the said Exhibit which is on record and as such the defendant by way of abundant caution, prayed for a further investigation by an Engineer Commissioner.
Mr. Sayan Chattopadhyay, learned Advocate appearing for the plaintiffs/opposite parties submits that whether the learned Trial Court below erred in disbelieving 4 the evidence and the contents of Exhibit‐H was an issue to be decided in the appeal and the learned appeal Court below was competent to decide the same and also take into consideration the evidence on record in order to from his own opinion. Thus, the application under Order 26 Rule 9 of the Code of Civil Procedure was nothing but an attempt to fish out evidence, at the stage of appeal.
Having considered the rival contentions of the parties, I find some merit in the contention of Mr. Sayan Chattopadhyay. Whether the learned Trial Judge erred in disbelieving the evidence of DW‐3 as also report of DW‐3 which was marked as Exhibit, will be decided by the learned Appeal Court below while considering the appeal on its own merit. Non consideration of the exhibit is a ground of challenge in the appeal.
It is an admitted position that when the Civil Engineer deposed as a defendant witness and had filed a report which has been marked as Exhibit and was proved, then it should be treated as evidence on record and should be looked into by the learned Court of appeal below. 5 However whether the contents of the said evidence will be accepted by the Court of Appeal or not is left to the decision of the learned Court.
Thus, I do not find any illegality in the order dated September 9, 2019 passed by the leaned Civil Judge(Senior Division) at Sealdah in Ejectment Appeal No. 11 of 2018. However, the observations made in the second page of the order that the application was filed before the Court for extraneous consideration is not correct.
Under such circumstances, this revisional application is disposed of.
There will be however no order as to costs. Urgent photostat certified copy of this order be given to the parties on priority basis, if the same is applied for.
(Shampa Sarkar,J.) 6 7