K. Abdul Rehman v. Allaudeen

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

CO/7/2024 Shri K. Abdul Rehman ... Petitioner Vs.

Shri Allaudeen ... Respondent Ms. A. S. Zinu ... for the Petitioner Mr. N.A. Khan ...for the Respondent January 31, 2024 [M.A. Mobin] Item No.1 The original certified copy of the order No.16 dated 24th November, 2023 in Other Suit Nos.8 of 2012 which has been filed along with this application is an incomplete one. A fresh certified copy of such order filed by the learned Advocate for the petitioner in Court today is taken on record.

The order no.16 dated 24th November, 2023 passed by the Joint Civil Judge (Senior Division), Port Blair, South Andaman in Other Suit No.08 of 2012 is under challenge in this Civil Order at the instance of the plaintiff. The petitioner herein filed a suit for eviction, recovery of khas possession, recovery of rent, damages and permanent injunction against the Opposite Party herein in respect of a shop room situated in the 1st Floor of a double storied RCC building.

The Opposite Party herein filed an application under Section 151 of the Code of Civil Procedure praying for an order directing the petitioner herein to remove the obstruction allegedly created in front of the shop room and for a further direction upon the petitioner herein not to park the vehicles during the business hours in front of the garment shop of the opposite party herein.

The learned Trial Judge, by the order impugned, directed the plaintiff/petitioner herein not to park any four wheeler or any two wheeler of any kind in the tenanted area in front of the garment shop of the defendant/opposite party herein.

The learned Advocate appearing for the petitioner submits that the challenge in the Civil Order is only restricted to the portion of the order no.16 dated 24.11.2023 in so far as an order of restraint with regard to the parking of car is concerned. She further submits that the petitioner is parking the car only for a few hours and not during the entire business hours.

The learned Advocate appearing for the opposite party disputes the submission of the learned Advocate for the petitioner and submits that the petitioner is creating obstruction to the running of business by the opposite party herein by way of parking of cars in front of the garment shop room of the Opposite Party during the business hours.

He further submits that the

landlord/petitioner herein do not have any right to park the car in front of the tenanted shop rooms.

Heard the learned Advocates for the parties and perused the materials placed. The opposite party herein claims to have been inducted as a tenant in respect of a shop room in the 1st floor of the two storied building situated at Junglighat village under Port Blair Tehsil in the District of South Andaman by virtue of a tenancy agreement dated 12th March, 2021. Clause 9 of the said tenancy agreement prohibits the tenant from parking any vehicle of his own just in front of the tenanted premises or obstruct in any way. Upon reading the tenancy agreement along with the aforesaid clause this Court of the view that the tenant do not have any manner of right in respect of any portion of the property in front of the garment shop room. The landlord being the owner of the property is entitled to utilize his property for his own purpose.

Since the tenancy right claimed by the opposite party herein flows from the tenancy agreement dated 12th March, 2021, the opposite party herein cannot claim any right beyond what has been conferred upon him by virtue of the said tenancy agreement. It is not the case of the opposite party herein that the ingress and egress to the tenanted shop room is obstructed in any manner.

in view thereof this Court is of the considered view that the order impugned directing the petitioner herein not to park any four wheeler or two wheeler of any kind in the

area in front of the garment shop of the defendant suffers from infirmity as such area do not fall within the tenanted area.

For the reasons as aforesaid the order no.16 dated 24th November, 2023 in so far as it directed the plaintiff not to park any four wheeler or two wheeler of any kind in the area in front of the garment shop of the defendant/opposite party herein is set aside.

CO No.7 of 2024 stands allowed.

Parties to act on a server copy of this order duly collected from the official website of the Hon'ble High Court at Calcutta.

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

(Hiranmay Bhattacharyya, J.)