Sabita Bhagat And ORS v. Prashanta Mistry And ANR

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** MA/9/2023 IA No.CAN/1/2023, CAN/2/2023 Sabita Bhagat and others Vs.

Prashanta Mistry and another Ms.A.S.Zinu ... for the appellants Mr. Gopala Binnu Kumar ... for the respondents July 20, 2023 [AKB] Item No.8 The present appeal has been preferred challenging an order dated 17th May, 2023 passed by the learned Single Judge in a writ petition filed by the respondent no.1 herein, being WPA/721/2023.

Ms. Zinu, learned advocate appearing for the appellants submits that the order impugned was passed without proper service upon the appellants and as such they did not get an opportunity to appear before the learned Single Judge. She submits that the writ petition was preferred challenging an order dated 17th April, 2023 passed by the learned Court below in OS No. 64 of 2022. The learned Single Judge even after observing that the writ petition might not be maintainable, issued direction upon the SHO, Pahargaon, who is not a party to the suit, to submit a detailed report in the Court below 'indicating, inter alia, from local inquiry and inspection as to when net is existing on the gate and was placed by the private respondents'.

She argues that the learned Single Judge passed the impugned order without appreciating the fact that as no petition for local inspection under Order 39 Rule 7 of CPC or local investigation under Order 26 Rule 9 of CPC was filed by the plaintiff/respondent no.1 herein, the learned Court below refused the plaintiff's prayer for removal of net fencing of RCC pillars.

Mr. Kumar, learned advocate appearing for the respondent no.1 denies and disputes the contention of the appellants and submits that the writ petition was first taken up for hearing on 10th May 2023 and leave was granted to the learned advocate of the petitioner to serve the learned advocate of the private respondents in the Court below. Pursuant to such direction and as the private respondents' advocate was out of station, the pdf copy of the writ petition was sent to the learned advocate by whatsapp. The appellants having refused service cannot argue that they were not granted any opportunity to contest the writ petition.

He argues that the order was passed in appreciation of the fact that the respondent no. 1 was not getting access to his own property for a substantial period of time due to the appellants.

He submits that the order dated 17th May, 2023 has already been implemented and the SHO has filed a report upon inspection on 1st June, 2023 and the matter is fixed for hearing before the learned Court below on 25th July, 2023. In view of such circumstances, no interference is called for in the present appeal.

Heard the learned advocates appearing for the respective parties and considered the materials on record. Indisputably the writ petition was preferred primarily challenging an order dated 17th April, 2023 passed by the learned Court below in OS No. 64 of 2022. In the said suit initially an order of status quo was passed on 29th November, 2022 on contest. Alleging that the said order of status quo is not been implemented, the plaintiff/ respondent no.1 herein filed an application under Section 151 of the Code.

From a perusal of the order dated 17th April, 2023 passed by the learned Single Judge in the said application it appears that the Court refused to exercise its discretion in favour of the plaintiff and rejected the prayer for removal of net fencing of RCC pillars taking into consideration the fact no petition for local inspection under Order 39 Rule 7 of CPC or local investigation under Order 26 Rule 9 of CPC has been filed by the plaintiff. The learned Single Judge in the order impugned had observed that though the writ petition might not be maintainable, the order is passed in the special facts and circumstances. We, however, do not find and any such special facts and circumstances warranting issuance of a direction upon SHO, who is not party to the suit, to conduct any inspection.

There is a specific provision under the Code to apply for local inspection and local investigation. Having not availed such remedy, the respondent no.1 preferred the writ petition. In such circumstances, the learned Single Judge ought not to have interfered in the writ petition moreso when the matter involves disputed questions of fact. Consequently, the report dated 1st June, 2023 submitted by SHO upon conducting an inspection in the absence of the appellants, is also not sustainable. In view thereof, the report dated 1st June, 2023 submitted by the SHO and the order dated 17th May, 2023 passed in the writ petition are set aside.

The appeal being MA/9/2023 and the connected applications are, accordingly, disposed of.

There shall, however, no order as to costs.

Urgent photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities.

(Tapabrata Chakraborty, J.) (Raja Basu Chowdhury, J.)