Niru Suri vs M/s. 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 property, inter alia, on the ground of reasonable requirement and violation of the Clauses MOP of Section 108 of The Transfer of Property Act, 1882.

The plaintiff filed an application for local inspection of the suit property within the suit premises being No. 63E, Ballygunge Circular Road, Kolkata- 700 019.

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

The learned Trial Judge by the order impugned has allowed the said application but dismissed the application filed by the defendant/petitioner dated November 27, 2014 seeking inspection of the non-suit premises nos. 63A, 63B, 63C and 63D, Ballygunge Circular Road, Kolkata- 700 019.

The defendant/petitioner by the said application sought appointment of the said Commissioner to demonstrate that the plaintiff has sufficient accommodation in those premises.

The plaintiff has disputed that he has any right, title and interest over the non-suit premises. The learned Trial Judge, however, without going into that question has dismissed the said application by the order impugned. The accommodation if not available to the plaintiff in the said non-suit premises has got a glaring ultimate outcome of the suit, as such, inspection of those properties must be necessary but to get such an order the defendant has to establish at least prima facie that the plaintiff has semblance of any title with those premises. The learned Trial Judge has failed to appreciate that the inspection sought for by the defendant in respect of non-suit property

has relevance in the defence of the defendant.

The order impugned therefore so far as it relates to rejection of the said application of the defendant dated November 27, 2014 is set aside with a direction upon the learned Trial Judge to decide the said application afresh in accordance with law.

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.