Atul Kumar Gupta vs Dilip Kumar Khurana And Another

Sabyasachi Bhattacharyya, J

The grievance of the present petitioner, being the fourth defendant in a suit, inter alia for declaration of the tenancy right of the plaintiff/opposite party no.1 and consequential reliefs, is that the trial court acted without jurisdiction in passing the impugned order, thereby granting the prayer of the opposite party no.1 for repair of the suit premises on the basis of a report filed by an Advocate Commissioner.

Learned counsel for the petitioner submits that previously the said application for repair was captioned to be one under Regulation 28 of the Andaman and Nicobar Islands Rent Control Regulation, 1964. On a subsequent challenge, the matter had come up to this Hon'ble Court, wherein, vide order dated January, 11, 2019 passed in CO No.002 of 2019, a coordinate bench had directed the present petitioner to prefer an appeal before the District Judge, under Regulation 26 of the said Regulations of 1964 treating prima facie the said application for repair as one under Regulation 28.

Subsequently, the matter went before the District Judge, who ultimately held that since the matter was filed in connection with a civil suit, Section 28 of the 1964 regulations did not apply, and converted the application for repair to one under Section 151 of the Code of Civil Procedure. Learned counsel for the petitioner points out that the coordinate bench of this court had kept the question of the veracity of the Commissioner's report open for being decided by the District Judge.

However, upon hearing learned counsel for both sides, it is evident that the District Judge did not pass any order on such challenge to the acceptance of the Commissioner's report, but merely converted the applications for repair to applications under Section 151 of the Code of Civil Procedure and directed the two repair applications filed by opposite party no.1 to be disposed of by the Trial Court.

As such, by such silence on the challenge to the veracity of the Commissioner's report, it has to be deemed that the District Judge refused such component of the challenge. Learned counsel for the opposite party no.1, at this juncture, points out that the order of the District Judge was challenged before this court but such challenge also met with failure.

In this context, learned counsel for the petitioner argues that the order of the District Judge ultimately set aside the entire order of the Trial Court, including the portion of the order impugned therein dated December 07,2018, whereby the petitioner's prayer for examining the commissioner was refused. However, that does not enhance the scenario for the petitioner in any manner for the following reasons:

(i) The District Judge, in any event, had no jurisdiction to adjudicate upon the order passed by the Civil Court in refusing the petitioner's prayer for examining the commissioner, since the District Judge was acting as an appellate authority under the 1964 regulations as per the limited direction of this Court and as such was in seisin only the portion of the Trial Court's order, whereby the applications for repair had been adjudicated.

(ii) The ratio behind the doctrine of deemed refusal still remains, even in the event the District Judge set aside the entire order, simply because a plain and meaningful reading of the entire order of the District Judge and the ordering portion, in particular, shows that the challenge as regards the examination of the commissioner was not even dealt with or decided, although such challenge was taken in the appeal before the District Judge, thereby attracting the principle of deemed refusal.

(iii) Thirdly, even if it is deemed that the portion of the Trial Court's order, whereby the prayer of the petitioner for examining the commissioner was rejected, it does not ipso facto grant the petitioner a right to examine the commissioner, unless there was a specific order to do so.

(iv) Fourthly, even if it is deemed that the right of the petitioner was revived as regard the examination of the commissioner, the same does not, ipso facto, invalidate the acceptance of report by the Trial Court, which was by a previous order.

Be that as it may, since the order of the District Judge attained finality, the trial court proceeded with the adjudication of the repair application on the basis of the Commissioner's report already on record and passed the impugned order granting permission to the petitioner to repair the suit premises.

Even if the order of the District Judge is not binding on this court and the present challenge is treated to be a composite challenge, also to the maintainability of the application in connection with the suit, as canvassed by the petitioner, it is seen that the prayers of the applications for repair do not conform with the language of Regulation 28(3) of the 1964 regulations and is an application simpliciter invoking the inherent power of the court to grant repair in aid of the final relief claimed in the suit. As such, in view of the Commissioner's report having given a picture about the damages occurred to the suit premises and in view of the innocuous nature of the order of repair sought, since the effect of such repair would only be the betterment of the suit premises, to which the petitioner claims ownership, there is no scope for interference with the impugned order.

Accordingly, CO No.3632 of 2019 is dismissed on contest. Service on the proforma opposite party no.2 is dispensed with, in view of the fact that the fate of the revisional application shall not affect the said proforma opposite party directly.

The Civil Judge (Junior Division)-I, Port Blair is requested to expedite the hearing of the suit, subject to the written statement, to be filed by the petitioner and the other defendants, being accepted, as far as the business of the said court permits.