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M/s. Soata Construction v/s Dilip Kumar Das & Another

    C.O.No. 1405 of 2014 (Appellate Side)

    Decided On, 12 May 2015

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SAHIDULLAH MUNSHI

    For the Petitioner: Rameswar Bhattacharjee, Jayanta Das, Advocates. For the Opposite Parties: Sabyasachi Bhattacharyya, Shohini Chakraborty, Advocates.



Judgment Text

Sahidullah Munshi, J.

This revisional application is directed against an order dated 14th August, 2013 passed by learned Civil Judge (Junior Division), 2nd Court at Sealdah, in Title Suit No.64 of 2003 renumbered as Title Suit No.375 of 2003 at the instance of the defendant No.2. It reveals from the record that plaintiff/opposite party No.1 filed a suit being Title Suit No.64 of 2003 praying, inter alia, for following reliefs:

a) For a Decree for Declaration that the Plaintiff has got legal right to use the suit property in common having all easement and appurtenance right thereto and the Defendant has got no right to obstruct the Plaintiff for the user of the said passage;

b) For a Decree for Permanent Order of Injunction restraining the Defendants and their men and agents for causing any obstruction and interference to the user of the said passage by the Plaintiff and further restraining them from changing the nature and character of the Passage.

In the said suit the plaintiff has stated in paragraph 4 that –

'4. That the Defendants all and on sudden with malafide motive and object since some time past is creating obstruction and disturbance to the free ingress and egress to the said passage and even trying to put a block on the mouth of the passage abutting to main Rajendra Lal Mitra Road and thereby the sewerage line passing through the common passage cannot be cleansed by the Sweeper creating smell and pollution & thereby put the Plaintiff into great duress & hardship.'

The plaintiff filed an application in the said suit under Section 151 of the Code of Civil Procedure and, inter alia, prayed for permission to the plaintiff to clean the drain without damaging and/or changing the character of the same.

Mr.Rameswar Bhattacharjee, learned advocate appearing for the defendant/petitioner, submits that his client filed an objection to the said application filed by the plaintiff under Section 151 of the Code of Civil Procedure. In paragraph 1 of the said application the defendant-petitioner stated, inter alia, that –

'1) That the plaintiff by suppression of material facts filed an application in this suit without service any copy thereof upon the lawyer of the defendant for cleaning the alleged drain upon which the plaintiff has no right, title, interest in any part or portion of Premises No.3A, Raja Rajendra Lal Mitra Lane, Kol-85 and therefore if any order for cleaning of (… not legible) alleged drain passed by the Ld. Court, the said order may be passed without prejudice to right and contention of the defendant in respect of the premises of the defendant being Premises No.3A, Raja Rajendra Lal Mitra Lane, Kol-85. It is mentioned here that in any part or any portion and also in the drain of Premises No.3A, Raja Rajendra Lal Mitra Lane, Kol-85, the plaintiff has got no right, interest and possession over the said premises of the defendant. The plaintiff is the owner of Premises No.2, Raja Rajendra Lal Mitra Lane, Kol-85 and as such no order may be passed in respect of Premises No.3A, Raja Rajendra Lal Mitra Lane, Kol-85.'

By filing such written objection the defendant No.2/petitioner submitted that the learned Court may be pleased to pass any order giving direction to the plaintiff to clean the drain of his premises without prejudice to the rights and contentions of the defendant in respect of the premises No.3A, Raja Rajendra Lal Mitra Lane, Kolkata-700085. The prayer made by the defendant No.2/petitioner in his said objection is quoted below :

'It is therefore prayed that your Honour may be pleased to pass any order for giving direction to the plaintiff to clean the drain of his premises without prejudice to the right and contention of the defendant in respect of the Premises No.3A, Raja Rajendra Lal Mitra Lane, Kolkata-700085 and/or to pass any such other order or orders as your Honour may deem fit and proper.'

On the basis of the said application filed by the plaintiff/opposite party No.1, objection filed by the defendant No.2/petitioner and taking into consideration of the Pleader Commissioner’s report dated 10th July, 2013, the learned Court below passed the order impugned. By the order impugned the learned Court below allowed the application filed by the plaintiff under Section 151 of the Code of Civil Procedure and passed an order directing repair of sewerage in presence of previously appointed learned Commissioner S.A. Karim subject to payment of his remuneration of `2500/- (Two Thousand Five Hundred) only to be borne by the plaintiff. It has been held that during the repair and/or cleaning work the learned Commissioner should have all the powers to exercise under his command to break open the tiles, manholes etc.

It has been also held that the cleaning work shall be confined only in respect of sewage of the plaintiff’s premises and as soon as it is completed the learned Commissioner shall take his best endeavor to get the passage back in its character as it was then.

It is also held that provisionally ten days may be taken for cleaning work and it would be appreciated if it is done earlier.

It has been further mentioned that to avoid further future complications the learned Commissioner be empowered to take note of any specification peculiarity and others in the sewage system as it may deem fit. It is also mentioned that if it is found there is no drainage system underneath, the learned Commissioner shall not be allowed to create any sewage system by the plaintiff for the purpose of percolating and permitting the waste water of the plaintiff. Mr. Rameswar Bhattacharjee, appearing for the petitioner/defendant No.2, submits that the order impugned is wholly illegal and without jurisdiction inasmuch as the impact of the order amounts to decreeing the suit itself because the declaration sought for by the plaintiff over the suit passage is yet to be made by the trial Court and if at this stage the order impugned is allowed to remain, the same will cause severe prejudice to the defendants’ interest in the suit property. Mr. Bhattacharjee also submits that the order has been passed in such a fashion that it will give rise to a right to the plaintiff to interfere with the defendants’ drainage system lying at premises No.3A, Raja Rajendra Lal Mitra Lane as mentioned in the written objection filed by the defendant No.2/petitioner. Mr. Rameswar Bhattacharjee further submits that the report earlier filed by the Pleader Commissioner is also not clear with regard to the existence of underground drain. He submits that the learned Court below is without any jurisdiction to pass an order for breaking open the drain, if necessary, and to bring it back in its original shape as indicated in the order impugned. According to Mr. Rameswar Bhattacharjee, the order impugned should have been restricted to the plaintiff’s premises and it should not have been allowed to undertake any work as indicated in the order impugned in respect of the defendants’ premises and he submits that the order impugned is liable to be set aside.

Mr. Sabyasachi Bhattacharyya learned advocate appears for the plaintiff/opposite party No.1 submits that there is an existing underground drain and sufficient indication has been given about the said drain in paragraph 4 of the plaint. He submits that during the pendency of the suit as exigency arose for cleaning the said drain for the hygienic purpose not only for the plaintiff but also for the surrounding people in the locality, he filed an application under Section 151 of the Code of Civil Procedure and made a specific prayer for cleaning the drain and, inter alia, stated that non-cleaning and non-maintenance of the drain that runs through the suit passage, has been totally blocked causing foul-water logging on the suit passage making it impossible for the plaintiff to reside in their house due to bad smell and has given rise to an unhygienic condition in the locality. In support of the averment made in the said application under Section 151 of the Code of Civil Procedure, the plaintiff has made the following prayer – 'It is, therefore prayed, that your Honour may be pleased to permit the plaintiff to clean the drain without damaging and/or changing the character of the same and/or to pass such other order or orders as your Honour may deem fit and proper.'

From the prayer made by the plaintiff in his aforesaid application it is apparent that the plaintiff sought for permission from the learned Court to clean the drain without damaging and/or changing the character of the same. Mr. Sabyasachi Bhattacharyya submits that in view of the objection filed by the defendant-petitioner and the pre-existing report of the Pleader Commissioner there cannot be two opinions with regard to the existence of underground drain and it is his only prayer to clean the said drain for the purpose as indicated above.

After hearing the parties and on perusal of the order impugned and the materials disclosed before this Court it appears that the learned Court below has passed an order in excess of the prayer made by the plaintiff to some extent but the order is not wholly without jurisdiction so that the same could be set aside. There is no doubt that there exists a drain and if that drain is blocked as indicated in the petition filed by the plaintiff, the same would be cleared under the supervision of the Pleader Commissioner as indicated in the order impugned but while carrying out the work as per the direction given by the learned Court below by the order impugned, the Commissioner shall see that there is no change of nature and characte

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r either of the passage or of the drain concerned. If the drain is blocked anywhere, the same is to be cleared and/or opened by the Pleader Commissioner through the help of masons or any expert or any cleaner, as the case may be, at the cost to be borne by the plaintiff and to see that water can pass through the said drain without any obstruction. If any obstacle exists in the drain the same should be removed under the supervision of the Commissioner. The impugned order stands modified to the extent that the Pleader Commissioner, while acting on the basis of the order impugned, shall see that nature and character of the existing drain is not changed in any manner and shall further see that his work of supervision and cleaning and/or repairing of the drain shall be restricted within the suit premises and not beyond that and without prejudice to the rights and contention of the defendant No.2/petitioner, if there be any, and such repair work shall not create any equity in favour of the said defendant No.2/ petitioner. The revisional application stands disposed of.
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