Shri Bennet Jacob v. The Lieutenant Governor And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] *** CO/33/2022 Shri Bennet Jacob Vs.

The Lieutenant Governor and others Mrs. Anjili Nag ... for the petitioner Mr. Shatadru Chakraborty Mr. Ramendu Agarwal ... for the respondents January 19, 2023 [SR] Item No.4 Rejection of prayer for local inspection coupled with prayer for repair is under challenge in this case. By the impugned order dated 21st April, 2022, learned Joint Civil Judge (Senior Division), South Andaman, Port Blair, has rejected the prayer for local inspection along with the proposed repairing.

Mrs. Anjili Nag, learned advocate representing the petitioner/plaintiff, while assailing the impugned order, submits that, since the subject property has suffered cyclonic storm accompanied by rain in the recent past years, resulting in a damage to the subject property, ascertainment of exact status of subject property, in order to reveal the true picture before this Court, whether requirement of repairing is there or not, the local inspection may not be rejected merely on the ground of delay to be caused in the disposal of the suit. Mrs. Nag further submits, in her usual fairness, that definitely there has been some adjournments proposed causing protraction to the Trial Court of suit, but it would not itself be treated to be fatal for the rejection of proposed prayer for repairing together with prayer for local inspection.

Per contra Mr.Shatadru Chakraborty, learned advocate representing the defendants, submits that the prayer for repairing read with local inspection has been proposed in respect of the government land, which is allegedly under possession of the petitioner/plaintiff. The entire exercise undertaken by the petitioner/plaintiff, according to Mr. Chakraborty, is nothing but to cause delay to the disposal of the suit.

It is further submitted by Mr. Chakraborty that the list of dates when the subject matter property has suffered the impact of the cyclone, even could not be disclosed in the petition proposing local inspection as well as repairing application filed by the petitioner, otherwise the prayer for proposed repairing should be construed to be imaginary one without any substance therein.

Having considered the submissions of both sides, it appears that the ascertainment of the exact and actual status of the subject property has been sought to be reached in aid of an application under Order 39 Rule 7 C.P.C by appointing learned inspection commissioner. It is, thus, ascertainment of exact status of suit property is felt necessary to apprise of imminent need of repairing, if any, with respect to subject property mentioned in the schedule to the plaint.

No doubt the subject property is located in cyclone prone area, and every year cyclone with heavy rain might have caused some damage to subject property to some extent. But the extent of the damage already suffered by the subject property, being affected with the impact of the cyclone, needs to be ascertained taking aid of local inspection commissioner.

No further elaboration on such issue, as presented, is felt necessary.

The revisional application stands disposed of, upon setting aside the impugned order dated 21st April, 2022, with a direction upon the Court below to appoint a suitable learned inspection commissioner within ten days from the date of communication of this order to the Court below, subject to payment of cost to be decided by the Court below as would be deemed fit and proper for the purpose. The learned inspection commissioner, so appointed, would hold the local inspection in terms of the points already disclosed in the petition for local inspection, upon previous notice to the opposite parties/defendants well in advance, so that there may be effective and useful local inspection for the purpose of ascertainment of the exact status of the subject property.

The report of the commissioner should be reached within ten days thereafter, and the submission of the report may be accepted in presence of both the parties, after giving chance of hearing to the opposite parties, if necessary. The prayer for repairing, if any at all needed, may be considered, bearing in mind the report of learned inspection commissioner submitted, within six weeks from the date of communication of this order from this date.

It is further clarified that, in the event of granting any repairing, as proposed by the petitioner, upon due appraisal of the local inspection commissioner report revealing the extent of damage already suffered by the subject property and the need of immediate repairing, that would not give rise to claim of equity on the part of the petitioners in the pending litigation.

This would not, however, prevent the opposite party/defendant to challenge the prayer for repairing, while hearing out afresh by the court below within the period mentioned for the purpose.

Since the pending litigation has suffered several adjournments on different grounds proposed by the petitioner/plaintiff, the logical conclusion of the suit may be reached with utmost expedition, without granting unnecessary adjournment, preferably within six months, after the disposal of the interlocutory application pertaining to the local inspection and repairing, as disclosed hereinabove.

The revisional application stands disposed of. Urgent certified copy of this order be supplied to the learned advocates appearing for the respective parties upon compliance of usual formalities.

( Subhasis Dasgupta, J. )