Shri Anant Ram And ANR. v. Shri A.V.Pandian

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** CO/14/2023 Shri Anant Ram and another Vs.

Shri A.V.Pandian With CO/15/2023 Shri Anant Ram and another Vs.

Shir A.V.Pandian Mr.Gopala Binnu Kumar ... for the petitioner Mr. N.A. Khan ... for the respondent/OP September 29, 2023 [SR] Item Nos.2&3 Both the revisional applications are taken up together as the orders are passed in the suits, which were tried analogously. The opposite party in both the revisional applications filed a suit for declaration of his tenancy right in respect of the subject property whereas the petitioner filed a counter claim in one of such suit filed by the opposite party which was dismissed for default and has not been restored as yet.

Initially the suit which was dismissed for default, the Trial Court passed an order dismissing not only the same but also the counter claim. But later on, on an application taken out by the petitioner, the counter claim was revived and direction was passed to proceed with hearing of the same.

Since both the suits are heard analogously, an evidence was adduced by the petitioner in relation to a counter claim and after the completion thereof, the Trial

Court closed the evidence and fixed the matter for arguments.

However, in the Other Suit filed by the opposite party, where the evidence of the opposite party was complete in all respect, an application was taken out for appointment of an advocate commissioner to inspect the property in question for the purpose of effecting repairs. So far as the order dated 16.01.2023, passed in Money Suit No.20 of 2007 is concerned, this Court finds that after completion of the witness action on behalf of the petitioner, the Trial Court closed the evidence obviously for the reason that the plaintiff's suit has been dismissed for default and, therefore, he may not be permitted to adduce evidence in the counter claim. Trial Court, by the impugned order, allowed the application and permitted the plaintiff/opposite party to adduce evidence within next two days.

Obviously the counter claim is regarded as a cross suit and guided by the provisions applicable for the plaint. The obvious reason for the same can be visualized that the plaintiff is permitted to file a written statement to the counter claim and, therefore, the moment the counter claim is proceeded with even after the dismissal of the claim laid by the plaintiff, he must be given an opportunity to defend the counter claim by adducing evidence in this regard. Since right to adduce evidence in support of the written statement filed by the plaintiff to the counter claim was denied, the Trial Court, after realizing such mistake permitted the opposite party to adduced evidence which cannot be said to be infirmed and/or illegal. The revisional application being CO/14/2023 is thus dismissed.

So far as CO/15/2023 is concerned, the application for repair was allowed as far as back in the year 2013 on the basis of the report submitted by the advocate commissioner. The repair could not be effected; the reasons has been incorporated in the application taken out by the opposite party which also contained an allegation that because of the obstructions and/or resistance having offered by the petitioner herein, the same could not be done. The petitioner had disputed such contention which does not appear to be wholly incorrect. The reason assigned for non-implementation of the order for effecting the repair is somewhat ambiguous but considering the fact that the evidence in the said suit has been completed and the same was also fixed for argument, this Court feels that because of

the inspection by the advocate commissioner, the progress of the suit should not hamper.

There is no necessity of re-visitation by the advocate commissioner as the repair intended by the opposite party can be denied. However, in the garb of repair, the opposite party cannot make any addition or alteration or further construction in respect of the property in question and sufficient care can be taken if the entire repair is done under the supervision of the advocate commissioner appointed in terms of the impugned order.

The impugned order is thus modified to the extent that the opposite party may carry out the repair of the property in question strictly under the supervision of the advocate commissioner appointed by the impugned order but shall not make any addition or alteration nor make any further construction thereat.

The remuneration of the advocate commissioner is fixed at Rs.10,000/- to be paid by the opposite party for such supervision.

Since the opposite party has been allowed to adduce evidence, the Trial Court shall fix a date which should not exceed beyond 15 days from the date communication of this order and shall permit the opposite party to bring witness and ensure that the same is completed within three days therefrom, if necessary by fixing the case on day today basis. After the closure of the evidence, the trial court shall make an endeavour to dispose of both the counter claim as well as the other suit filed by the opposite party within three months therefrom.

With these observations, the revisional application being CO/15/2023 is thus disposed of.

Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.

( Harish Tandon, J. )