Calcutta High Court
Debsons Pvt Ltd vs Ashoka Ghose & Ors on 3 September, 2010
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
APOT No. 503 of 2010
G.A.No. 2805 of 2010
C.S.No.178 of 1978
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
DEBSONS PVT LTD .. Appellant
Versus
ASHOKA GHOSE & ORS .. Respondents
BEFORE:
The Hon'ble JUSTICE PINAKI CHANDRA GHOSE The Hon'ble JUSTICE ASIM KUMAR RAY Date : 3rd September, 2010.
The Court : There will be an order in terms of prayer of the application.
Instead of taking up the stay application, by consent of parties, we take up the appeal.
This appeal is directed against an ad-interim order dated July 22, 2010 whereby the learned Single Judge was pleased to appoint a Special Officer for the purpose of making surprise inspection of the premises without notice to either party. It appears that a suit has been filed in this Court in the year 1978 by the respondent/plaintiff, inter alia, for ejectment of the defendant i.e. the appellant herein and for delivery of khas possession of the suit premises described in Annexure-A to the plaint. The said suit is still 2 pending for adjudication. Written statement has also been filed in the said suit. Thereafter, from time to time certain applications were filed before this Court and orders were also passed from time to time. It appears that the plaint was amended on 28th August, 2001 to the extent that the defendant without the knowledge, consent and authority of the plaintiffs wrongfully and illegally inducted persons and concerns i.e. BPL Ltd., Sansui, Whirlpool, HCL Stores and Skypak and that the defendant without the previous consent of the plaintiffs transferred, assigned, sublet and otherwise parted with the possession in whole or in part of the suit premises held by it.
It further appears that allegation has been made that without the knowledge, consent and authority the appellant wrongfully and illegally transferred, assigned, sublet or parted with possession of the suit property. In such circumstances, earlier applications were filed before the Court and on 16th September, 2003 an order was passed by this Hon'ble Court. It also appears that on 30th November, 2006 the respondent herein further filed an interlocutory application 3 against the defendant for appointment of Special Officer with regard to the allegations made in the said petition and the said petition was also disposed of and from the facts, it appears to us, that the plaintiff/respondent herein has to take steps to file several applications in the suit at the instance of the appellant/defendant. At one point of time, G.A.No. 3695 of 2006 and G.A.No. 3856 of 2007 were disposed of by an order dated 18th February, 2008 appointing a Special Officer, Mr. Manoj Malhotra, Advocate to ascertain whether the defendant is in exclusive possession of the entirety of the suit premises and as to whether the defendant has sought to change the nature and character of the suit premises. The said Special Officer has duly filed his report.
It appears that the respondent/plaintiff had filed a petition before the Trial Court on the ground that the appellant/defendant is carrying on illegal and unauthorised construction on the ground floor of the said premises. In these circumstances, the said application was moved before the Hon'ble First Court when His Lordship was pleased to pass the order dated 4 22nd July, 2010 at the ad-interim stage appointing a Special Officer and further directed as follows :
"For the moment, the defendant will remain restrained from carrying out construction of any nature at the premises in question. No construction may be carried out even in the guise of such construction being necessary for the purpose of the defendant's occupation of the premises."
The Hon'ble First Court further directed to file affidavit-in-opposition within four weeks and reply thereto within one week thereafter and directed that the matter to appear in the list as 'Adjourned Motion'. The said order was passed on 22nd July, 2010. The present appeal has been filed by the appellant on 27th August, 2010. It is submitted on behalf of the appellant that visiting at the premises in question twice by the Special Officer is nothing but fishing of evidence, if such order is being carried out by the Special Officer, it would cause prejudice to the appellant. Hence, it is prayed that the said order should be vacated.
5After considering the facts stated in the petition and considering the submissions made on behalf of the parties, we do not find that the order so passed by the Hon'ble First Court suffers from any irregularity or illegality. On the contrary, it appears to us upon enquiry that the appellant did not even take steps to file the affidavit as directed by the Court, till date. We, therefore, do not intend to interfere with the order so passed by the Hon'ble First Court at the ad- interim stage. The Hon'ble First Court was pleased to direct the matter to appear in the monthly list of September, 2010. It appears to us that no step has yet been taken by the appellant to file such affidavit. We do not intend to interfere at this stage when the order has been passed at an ad-interim stage. We do not find any merit in the appeal. The appeal, therefore, must fail and is hereby dismissed.
Since no affidavit has been filed, allegations made in the petition are not admitted. For the aforesaid reasons, the stay application is also dismissed. Undertakings are discharged. 6
After we dismiss the appeal, Mr. Banerjee appears on behalf of the appellant prays for extension of time to file affidavit-in-opposition before the Hon'ble First Court within a week from date. Mr. Mitra also prays for one week's time to file reply. Accordingly, we direct Mr. Banerjee's client to file affidavit-in- opposition within a week from date, and reply be filed by Mr. Mitra's client within a week thereafter.
We make it clear that the observations made by us shall not stand in the way to decide the matter by His Lordship in any manner whatsoever.
All parties concerned are to act on a signed photocopy of this order on the usual undertakings. Urgent certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(PINAKI CHANDRA GHOSE, J.) (ASIM KUMAR RAY, J.) km AR(CR)