Niru Suri vs Jagadish Caterar Private Limited

Biswajit Basu, J

Affidavit of service filed in Court today be kept with the record.

This revisional application under Article 227 of the Constitution of India is at the instance of the defendant in a suit for ejectment and is directed against the order dated April 24, 2015 passed by the learned Civil Judge (Junior Division), 1st Additional Court, Alipore in Ejectment Suit No. 353 of 2009, subsequently renumbered as Ejectment Suit No. 39 of 2015.

The plaintiff is seeking eviction of the petitioner from the suit premises being No. 63E, Ballygunge Circular Road, Kolkata- 700 019, inter alia, on the ground of reasonable requirement and violation of the Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, 1882.

The plaintiff filed an application for appointment of an Advocate Commissioner to hold inspection of the suit premises to ascertain the extent of alleged damages caused by the defendant to the said property.

The defendant also filed an application for holding local inspection of the non-suit premises being nos. 63A, 63B, 63C and 63D, Ballygunge Circular Road, Kolkata- 700 019.

The learned Trial Judge by the order impugned has allowed the said application filed by the plaintiff but has dismissed the application filed by the defendant on the ground that premises in respect of which the inspection was sought for do not form the subject matter of the suit.

Order XXXIX Rule 7 of the Code can be resorted to for inspection not only of a property which is the subject matter of the suit but also in respect of a property as to which any question may arise in such suit.

That the plaintiff has reasonable suitable accommodation elsewhere is a valid defence for a defendant in suit for eviction on the ground of reasonable requirement and such defence gives rise to an issue to be decided in the suit, for the proper adjudication of the said issue the inspection of said non-suit premises can be prayed by taking recourse to the provision of Order XXXIX Rule 7 of the Code.

However, to seek such inspection the defendant is required to demonstrate before the Court that the plaintiff has some semblance of right, title and interest over the said non-suit premises.

The order impugned whereby the application for holding local inspection of the said non-suit premises filed by the defendant has been dismissed is set aside.

The learned Trial Judge is directed to decide the said application afresh in accordance with law, in light of the observations made hereinabove.

The learned Trial Judge shall make all endeavour to dispose of the said application within the period of three weeks from the date of communication of this order positively without granting any unnecessary adjournment to either of the parties.

With the above, CO 2467 of 2015 is disposed of. No order as to costs.

Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.