Prasenjit Mandal, J. - (1.) CHALLENGE is to the Order No.29 dated January 10, 2011 passed by the learned Civil Judge (Junior Division), 2nd Court, Alipore in Ejectment Suit No.57 of 2006 thereby rejecting an application for appointment of an Engineer- Commissioner on contest.
(2.) THE short fact is that the plaintiff / opposite party herein instituted a suit for ejectment being the Ejectment Suit No.57 of 2006 against the defendant / petitioner for recovery of Khas possession by evicting the defendant from premises in suit, mesne profits, temporary injunction and other reliefs before the learned Civil Judge (Junior Division), Alipore. THE defendant is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. THE suit was at the stage of recording evidence. At that stage, the petitioner filed an application for appointment of an Engineer-Commissioner for holding local investigation on the points as noted in the application appearing at page no.17 of the application and the points for inspection have been mentioned in page no.25 and 26, inter alia, to count the number of floors of the suit property, to state the condition and status of the ceiling, walls, roofs, staircase, plastering of the building, condition of electricity, sewerage system etc. THE plaintiff filed a written objection against that application and then upon hearing both the sides, the learned Trial Judge rejected the application for local investigation. Being aggrieved, this revisional application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the said ejectment suit was filed by the plaintiff on the ground of default, reasonable requirement, causing damage to the suit property, encroachment and illegal construction, so on. The plaintiff has contended in his ejectment suit that the major portion of the suit property is in dilapidated condition and as a result, the Kolkata Municipal Corporation served a notice upon the plaintiff in 2005 to demolish the damaged or dilapidated portion and cause repair works in the remaining portion of the premises in suit and for that reason, the plaintiff is also required to comply with such directions of the Kolkata Municipal Corporation and the defendant is required to vacate the suit premises for the said purpose. The defendant has contended that the condition of the building is not good as stated earlier. In fact, the plaintiff / landlord has admitted such fact. Under the circumstances, an investigation by an engineer-commissioner over the admitted fact is totally redundant and it is not necessary at all.
(3.) FURTHER, such an application has been filed at the stage of peremptory hearing meaning thereby the defendant wants to prolong the life of the litigation so that the plaintiff may not get the reliefs as prayed for. More so, when one of the reliefs is for recovery of possession on the ground of reasonable requirement and another in view of the notice issued by the Kolkata Municipal Corporation in 2005, so, it is clear that the intention of the defendant is to drag the matter anyhow and that is why he filed the application for appointment of an Engineer-Commissioner only at the stage of peremptory hearing of the suit. Further, it may be noted herein that previously a Commissioner was appointed at the instance of the plaintiff to know the actual condition of the building and accordingly, the learned Commissioner so appointed, wanted to inspect the suit property in presence of both the sides. The report of the Commissioner clearly indicates how the defendant caused harassment for delay or hindrance in the matter of holding the commission by the learned Commissioner. So, there was a long delay in the submission of the report by the learned Commissioner appointed for the purpose of inspection. So, this application has been filed with the sole object to prolong the litigation so that the suit may not be disposed of at any time. This being the position, the learned Trial Judge should have awarded the costs in filing the belated application with the sole intention to drag the matter.;