Kum Kum Chatterjee vs Ratan Roy

Asim Kumar Mondal, J.—This is an application under Article 227 of the Constitution of India. The petitioner as plaintiff filed a suit for eviction against the opposite party which is pending before the learned Civil Judge (Senior Division), 9th Court, Alipore being numbered as Title Suit No. 17 of 2003. The case of the petitioner/plaintiff as made out in the suit in short is that the defendant is a tenant of the suit property. Defendant caused damage to the suit property and the suit property is reasonably required for the petitioner for her own use and occupation.

The opposite party/the defendant during the pendency of the suit filed an application for effecting necessary repair work in the suit property. The petitioner field objection to the said petition seeking permission for repairing. The learned Trial Court by an order dated July 3rd, 2006 allowed the said application for repairing with a condition that the opposite party will not change the nature and character of the suit property. The opposite party again filed an application intimating the learned Trial Court that due to the obstruction on behalf of the petitioner /plaintiff the repair work could not be completed. In view of the permission vide petition dated December 22nd, 2005 the petitioner again raised objection denying all the allegations made therein.

The learned Trial Court in spite of holding that for the purpose of installing the long chimney relocate of pipelines is necessary, but by the order dated April 16th, 2009 granting the permission to install the chimney without investigating whether such chimney can be installed or not.

The petitioner being aggrieved by and dissatisfied with the said order preferred an application under Article 227 of the Constitution of India which was registered as C.O. No. 1314 of 2009.

Hon''ble Court in the said revisional application appoint a special officer to find out a suitable space for installation of gas duct in the tenanted portion of the suit property. Learned special officer visited the premises and submitted his report dated June 4th, 2010 categorically suggested that gas duct can be installed through the first opening in the southern wall which is eight inches in diameter with proper support from the terrace above the suit premises. This court was pleased to dispose of the application being C.O. No. 1314 of 2009 by allowing the opposite party to install the gas duct in terms of the report of the learned special officer.

In pursuant to the direction of the Hon''ble Court Mr. Roy empanelled engineer visited the premises and supplied a technical report for the purpose of installation of gas duct in the premises in question. As per the technical report, for the purpose of installation of the said gas duct drilling and cutting of same portion of the existing wall is necessary. It is evident from the order of the Hon''ble Court that such gas duct can only be installed from taking support from the roof not by fixing the same on the wall. The petitioner/plaintiff filed petition to the said allegation of the opposite party that the plaintiff/petitioner is not cooperating with the opposite party for installing the gas duct. Learned Trial Court by order dated November 18th, 2011 has been pleased to allow the petition of the opposite party dated march 15th, 2011.

Being aggrieved by and dissatisfied with the said order of dismissal the petitioner/plaintiff has preferred the present revisional application on the ground that learned Court acted illegally by allowing the application by modifying the order passed by this Hon''ble Court.

Mr. Jiban Ratan Chatterjee, learned Counsel appearing on behalf of the petitioner submits that the petitioner/plaintiff is always ready to co-operate the work of installation of the gas duct at the suit premises in view of the directions of this Hon''ble Court passed in C.O. No. 1314 of 2009. The learned Trial Court did not consider the directions of the Hon''ble Court and also the report of the special officer. Learned Trial Court in spite of holding that for the purpose of installing the long chimney relocate of pipelines is necessary but granted the permission to install the chimney without investigating that such a chimney can be installed or not. There is special observation in the report of learned special officer that gas duck can be installed through the first opening in the southern wall which is eight inches in diameter with proper support from the terrace above the suit premises.

Mr. Probal Mukherjee with Mr. Rajdeep Bhattacharjee appears on behalf of the opposite party/defendant submits that in fact, due to the non-cooperation from the part of the plaintiff/petitioner the installation of gas duct is hold up. In the impugned order learned Trial Court has considered all aspects and passed necessary order directing both the parties to follow and comply the order of this Hon''ble Court in course of installation of gas duct. So, in view of Mr. Mukherjee, there is nothing to interfere in the order impugned.

I have carefully perused the certified copy of order impugned and also perused the photocopies of documents annexed herewith. The prime issue of this revisional application is whether the opposite parties are installing the gas duct in accordance with the orders passed by the learned Trial Court in the earlier occasions as well as by the orders passed by this High Court under the supervision of Mr. Roy an empanelled engineer of the High Court. On the contrary it is also to be considered whether the petitioner/plaintiff is coordinating with the opposite party/defendant to implement the orders of the Courts in installation of gas duct.

It appears to me that the learned Trial Court has elaborately discussed the orders passed by the Trial Court on the earlier occasions over the issue as well as the order passed by this High Court in revisional application. In fact, learned Trial Court did not find anything left to consider the matter disputing by the parties so learned Trial Court has been pleased to allow the petition dated March 15th, 2011 on certain terms and conditions.

Learned Trial Court rightly put the conditions in view of the directions of this Court in civil revision being No. 1314 of 2009 dated December 16th, 2009. It is also directed that the work of installation of the gas duct will be completed under the supervision of Mr. Tapan Kumar Roy, an empanelled engineer of the High Court and special officer appointed by this Court.

An order by a Co-ordinate Bench of this Court on the same self issue requires no further interference by this Court when there is no deviation of work is admittedly noticed and brought before the learned Trial Court.

So, the revisional application is liable to be dismissed having no merit. The order impugned being order dated November 18th, 2011 passed in Title Suit No. 17 of 2003 by learned Civil Judge, (Senior Division), Alipore, 9th Court remain uninterfered.

Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.