EIH LIMITED Vs. JAY ENGINEERING WORKS LIMITED

JUDGEMENT

(1.) THIS application is at the instance of the plaintiff and is directed against the order dated June 21, 2010 passed by the learned Chief Judge, City Civil Court, Calcutta in Title Suit No.61 of 2005 thereby permitting the defendant/opposite party to repair the suit premises at his own cost. It was also directed that the defendant was permitted to repair the damaged portion of the suit premises only. Being aggrieved by the said order, the plaintiff/petitioner herein has preferred this application. The plaintiff/petitioner instituted the suit against the defendant praying for permanent injunction restraining the defendant from transferring and or sub-letting the premises in suit, as described in the schedule of the plaint. At the time of filing of the said suit, the plaintiff filed an application for temporary injunction praying for restraining the defendant from doing any work concerning the repairing of the false ceiling, removal of tiles, furniture, fittings, plastering of the walls, etc. and it got an ex parte ad interim order of injunction on January 14, 2005. The defendant/opposite party herein has contested the said application by filing application under Order 39 Rule 4 of the Code of Civil Procedure. The learned Trial Judge has considered that application under Order 39 Rule 4 of the C.P.C. as objection to the petition for temporary injunction filed by the petitioner and both the applications were disposed of granting injunction in favour of the plaintiff on February 9, 2005. In the application under Order 39 Rule 4 of the C.P.C., the defendant prayed for repair of certain works of the premises in suit contending that those were essential for running the business. Being aggrieved by the said order, the petitioner preferred an appeal before the Honble Court being F.M.A.T. No.504 of 2005. That appeal was allowed by setting aside the impugned order. The Honble Division Bench of this Court also directed the learned Trial judge to appoint an advocate commissioner for the purpose of local inspection. The learned commissioner would submit the report before the Court and after submission of such report, the defendant/opposite party would complete renovation work. Thereafter, the said advocate commissioner would hold inspection again and submit a report as to the construction done by the defendant/petitioner. Accordingly, the learned commissioner submitted a report. The plaintiff filed an objection against the said report. But, unfortunately, the report of the learned commissioner and the objection filed by the plaintiff have been kept with the record for taking a decision thereon along with the peremptory hearing. At the same time, the learned Trial Judge permitted the defendant to repair the suit premises at his own cost with regard to the damaged portion of the suit premises. Being aggrieved by such orders, this application has been preferred. Now the point for consideration is whether the impugned order can be sustained. Upon hearing the submission of the learned Advocate of both the sides and on perusal of the materials on record, I find that after passing of the order by a Honble Division Bench of this Honble Court relating to disposal of the injunction matter, the learned Trial Judge was to appoint an engineer commissioner for inspection for submitting a report relating to the damage, as claimed by the defendant/petitioner in his objection under Order 39 Rule 4 of the C.P.C. and thereafter, the learned Trial Judge was to consider such report and to pass appropriate orders permitting the defendant/petitioner to cause repair of such damaged portion of the premises in suit in such manner as the learned Trial Judge deems fit and proper. Thereafter, on completion of the repair works, the said engineer commissioner shall be appointed again for holding inspection to decide the nature of repairing works undertaken by the defendant/opposite party and to see if he has exceeded the repairing work, etc. Instead of complying with that direction, the learned Trial Judge has simply kept the report of the engineer commissioner and the objection filed by the plaintiffs on record for deciding the same along with the peremptory hearing. In the meantime, the defendant was permitted to repair the damaged portion of the suit premises at his own costs. Thus, I find that the learned Trial Judge did not consider at all the report submitted by the engineer commissioner and the objection filed by the plaintiff to ascertain as to actually what portion of the premises in suit is required to be repaired. The learned Trial Judge has permitted the defendant/petitioner to repair at his sweet-will only damaged portion of the suit premises but what is the damaged portion of the suit premises remains undecided and in the name of repair of the damaged portion of the suit premises, there is chance of changing the nature and character of the suit premises. The defendant/petitioner may even exceed repairs which he has prayed for in his objection in the application under Order 39 Rule 4 of the C.P.C. THIS being the position, the impugned order is not in conformity with the directions given by the Honble Division Bench in the said F.M.A.T. No.504 of 2005. Therefore, the impugned order cannot be sustained at all. It should be set aside. If the defendant intends to repair the premises in suit, he has to comply with the directions as observed by the Honble Division Bench in the said F.M.A.T. and to take appropriate measures accordingly. Otherwise, the question of repair cannot be granted. The impugned order cannot, therefore, be sustained. THIS application is disposed of in the manner as indicated above. Consequently, the CAN application has become infructuous and it is, therefore, dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.