Sri Nayan Kumar Ghosh vs Sri Hiralal Shaw

The present challenge is directed at the instance of the defendant in an eviction suit, against an order whereby the prayer of the defendant/petitioner for a second local inspection in respect of the occupation of the plaintiff/landlord was turned down.

Learned counsel for the defendant/petitioner argues that although a previous commission was held to inspect the existing accommodation of the plaintiff/opposite party, such commission omitted to examine the accommodation of the plaintiff in a shop room on the ground floor. As such, it is argued, the second commission was necessary.

Learned counsel for the opposite party, on the other hand, submits that since all the shop rooms on the ground floor are tenanted, including one being tenanted to the present petitioner, there was no occasion to hold a local inspection in respect of those, since the said shop rooms could not amount to existing alternative accommodation of the plaintiff.

It is seen from the impugned order that the trial court proceeded on the premise that since the defendant/petitioner did not file any written objection to the commissioner's report, it did not lie in the mouth of the petitioner that a fresh commission was necessary and that commission ought to have been held in respect of the shop room on the ground floor.

It is well-settled that the plaintiff/landlord has to satisfy the court that there is no existing alternative accommodation, in a suit for eviction on the ground of reasonable requirement. As such, it will always be open to both the parties to argue on the question at trial, as regards the availability of alternative accommodation to the plaintiff, in the present case in the form of a shop room on the ground floor. As far as the impugned order is concerned, the trial court acted well within its jurisdiction in refusing to direct further local inspection, since it was the specific stand of the plaintiff, unshaken in evidence till the present moment, that all the shop rooms on the ground floor were taken by tenants and were not in occupation of the plaintiff/opposite party.

The result of the suit will invariably depend on availability of alternative accommodation of the plaintiff, not only on the other floors but also on the ground floor, if at all available. However, such question has to be addressed only at the final hearing of the suit and it will be premature for this court to enter into such enquiry at the present juncture.

Accordingly, C.O. 3933 of 2018 is dismissed without any order as to costs, on the observations as made above.

Urgent website certified copies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.