Decided on November 15,1995



S.K. Mookherjee, J. - (1.)The present appeal is directed against Order No. 47 dated 2.5.1994, passed by the learned Judge, 5th Bench, City Civil Court, Calcutta in Title suit No. 2459 of 1992. By the said order, while disposing of an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure preferred on behalf of the plaintiff/respondent and an application under Order 39 Rule 4 of the Civil Procedure Code, preferred on behalf of the defendant/appellant, the learned Trial Judge, inter alia directed that the existing tarpaulin structure on the disputed roof be replaced by temporary tin roof structure over the existing RCC columns; water should be prevented from coming over to the disputed roof by sitting inslop, over-hanging beyond the building parameter-and the debris on the roof should be removed, the directed works should be carried out by the defendant with prior consultation with the plaintiff and under plaintiffs supervision, initially the costs being borne by the defendant. After admitting the appeal before this Court preferred by the defendant, this Division Bench, on 8th July, 1994, inter alia, directed appointment of a Civil Engineer, who was to consider the proposals for effecting temporary repairs and submit a report. By another Order, dated 19th July, 1994, the plaintiff was directed to take steps, in terms of the report of the Special Officer, to provide temporary protection/remedial measures from rains to the portion of the premises occupied by the appellant. The said temporary remedial measures were to be taken, as, on behalf of the respondent/plaintiff, it was contended that putting up structures in accordance with the directions of the Trial Court would require at least 6 to 8 weeks. By another Order dated 17th May, 1995, an ad hoc arrangement was directed by a Division Bench, authorising the appellant to implement the Orders, dated 8th and 19th July, 1995. The appeal, thereafter, came up before us for being finally heard out.
(2.)Admittedly, the suit is pending before the Trial Court. The contentions advanced clearly reveal certain admitted factual state of affairs namely (i) Ownership belongs to the plaintiff; (ii) defendant's lease has a long period to run; (iii) There are allegations and counter-allegations of the leakage being caused in the roof due to action of the defendant. The repairs proposed to be carried on by the defendant may result in conferring better amenities to it as a tenant than those available at the inception of tenancy; on the other hand absence of immediate remedial measures may cause serious damage to the highly sophisticated appliances of the defendant, which have been kept under the roof; (iv) According to the terms of the lease, primarily, the owners are liable to keep the roof, main walls and exterior of the premises, amongst others, in good and tenantable order and condition.
(3.)The impugned Order indicates that the extent of rights claimed by the parties has to be finally determined before the relief asked for by either of the parties, in assertion of their respective rights, can be granted. The repairs proposed by the defendant may alter the nature of the roof in dispute to which the tenancy of the defendant does not extend save and except that the condition of the roof should be so maintained as to allow the defendant to enjoy its tenancy. The Engineer/Special Officer, appointed by this Court, suggested certain remedial measures on a temporary basis, for preventing prejudice being caused to the interest of either of the parties during the last monsoon. The steps suggested by the said Engineer/Special Officer were as follows :
(1) Repair of existing Tarpaulin Roof where leakage occurs.

(2) Strengthening of supporting bamboo structure as necessary.

(3) The Roof should be cleaned and cleared of rubbish, debris and shrubs etc.

(4) Rain water down pipes should be cleaned for clearing out of water.

(5) The Tarpaulin structures should be extended to the uncovered portion of roof where required necessary.
In terms of the said report, by our Order, dated 19th July, 1994, respondent/plaintiff was directed to take steps to provide temporary protection/remedial measures from rains to the disputed portion in occupation of the appellant/defendant.

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