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2023 Supreme(Cal) 1521
IN THE HIGH COURT OF CALCUTTA
AJOY KUMAR MUKHERJEE, J.
Sri Jawahar Baitha - Petitioner
Versus
Pradip Kumar Sett & Anr. - Opposite Parties
C.O. No. 1654 of 2019 with Can 1 of 2022 With Can 2 of 2022
Decided On : 17-05-2023
For the Petitioner: Mr. Sibendra Nath Chatterjee Ms. Gargi Acharyya.
For the Opposite Parties : Mr. S.N. Dutta Mr. Saikat Karmakar.
Headnote:(A) Constitution of India - Article 227 - Limitation Act - Section 5 - Application for restoration - The court condoned the delay in filing and restored the application dismissed for default. Local inspection for determining tenancy was rejected, seen as an impermissible attempt to gather evidence post-recording. (Paras 2, 4, 9-12)
(B) Local inspection commission - Cannot be employed to procure evidence; must record existing conditions only and cannot fill evidentiary gaps. (Paras 10, 12)
Facts of the case:
The petitioner challenged a rejection of an application for local inspection, arguing it was necessary to establish the premises' conditions and respective tenancies against the opposite parties. (Paras 6-8)
Findings of Court:
The request for a local inspection commission was rejected as it was aimed at gathering evidence, which contradicts procedural law. (Paras 10-12)
Issues: Whether the restoration of the application is justified, and the appropriateness of the local inspection application after evidence recording. (Paras 4, 8)
Ratio Decidendi: The court emphasized that local inspection commissions cannot be utilized for collecting evidence nor can they replace oral or documentary evidence already on record. (Paras 9, 12)
Result: Application dismissed.
| Table of Content |
|---|
| 1. condonation of delay granted. (Para 2) |
| 2. final order dismissing c.o. and directing expeditious proceedings. (Para 3 , 13 , 14 , 15) |
| 3. restoration application based on lack of awareness and lockdown. (Para 4 , 5 , 6 , 7) |
| 4. opposition argues delay and mala fides in evidence gathering. (Para 8) |
| 5. commission's purpose cannot be to gather evidence. (Para 9 , 10 , 11) |
| 6. application to fill lacuna in evidence rejected. (Para 12) |
JUDGMENT :
Ajoy Kumar Mukherjee, J.
In Re: CAN 2 of 2022
Affidavit-in-opposition filed by the opposite party to the application for restoration is taken on record.
2. This is an application for condonation of delay in filing an application for restoration under Section 5 of the LIMITATION ACT . The grounds shown in the application appears to be satisfactory and accordingly, the delay is condoned.
3. CAN 2 of 2022 is accordingly disposed of.
In Re: CAN 1 of 2022
Affidavit-in-opposition filed by the opposite party is taken on record.
4. This is an application for restoration of the application being C.O. 1654 of 2019 which was dismissed for default on 20th September, 2019. The petitioner contended that he was not aware about the dismissal order and thereafter, from March 2020, complete lockdown started throughout India and for which she could not take steps in time. There is no intentional latches or negligence on the part of the applicant and accordingly, prayed for restoration of the application. The grounds shown in the application appears to be satisfactory and accordingly, C.O. 1654 of 2019 is restored in its original file with original number. CAN 1 of 2022 is accordingly disposed of.
In Re: C.O. 1654 of 2019
This is an application under Article 227 of the Constitution of India which is taken up for hearing on consent given by both the parties.
5. In this application, the petitioner/defendant has challenged the order no. 124 dated 27.3.2019 passed by the learned Additional District Judge, 5th Bench, City Civil Court, Calcutta in Title suit no. 1023 of 2003. By the impugned order, learned court below was pleased to reject the defendant's application under Order 39, Rule 7 with cost of Rs. 3,000/-.
6. Being aggrieved by that order, the petitioner herein contended that predecessor-in-interest of the petitioner Anganu Baitha and Chunilal Baitha (Dhobi) were jointly monthly tenants in respect of a godown situated at 11, Ho-chi-Minch Sarani, Kolkata-700071. The petitioner along with his other covered area residing in the said premises for last 40 years as the monthly tenant in respect of the premises under the Administrator General and Official Trustees of Government of West Bengal and presently he is paying monthly rent of Rs. 120 with the office of the learned Rent Controller, Calcutta. The plaintiff/opposite parties herein are also claiming to be resident in the ground floor at the said premises as monthly tenant under the administrator General. They are not the landlords of the petitioner and they also enjoy the same status of tenant.
7. All of a sudden, the opposite parties by lawyer's notice dated 22. 2.2022 asked the petitioner herein to vacate the said premises and on the basis of said notice, they have filed the aforesaid suit for recovery of possession against the present petitioner. The petitioner filed written statement and denied all material allegations. He further submits that on behalf of the official trustees, one witness deposed before the court and he stated in his evidence that item no. 6 of the tenancy list shows Chunilal Baitha (Dhobi) as a tenant in respect of godown but he was unable to locate godown of Chunilal Baitha (Dhobi). Now in order to pin point the existing accommodation of the petitioner, the petitioner herein filed an application under Order XXXIX rule 7 before the court below for ascertainment of the entire tenanted rooms of the opposite parties and the room of the defendant/petitioner left by their predecessor-in-interest, Chunilal Baitha (Dhobi). However, learned cou
