Fixing up a collapsible gate does not amount to addition or alteration which is permanent in character nor can fixation of gate be said to be destructive.
CALCUTTA HIGH COURT
SINGLE BENCH
( Before : Bhaskar Bhattacharya, J )
SABITA RANI NAG — Appellant
Vs.
DIPA RANI DAS — Respondent
Civil Order No. 312 of 1999
Decided on : 18-03-1999
Civil Procedure Code, 1908 (CPC) – Section 115A
Constitution of India, 1950 – Article 227
Transfer of Property Act, 1882 – Section 108
Counsel for Appearing Parties
Amal Krishna Saha, for the Appellant;
JUDGMENT
Bhaskar Bhattacharya, J.—This revisional application under Article 227 of the Constitution of India is at the instance of a tenant-Defendant in a suit for eviction and is directed against order dated January 16, 1999 passed by the learned Additional District Judge, 6th Court, Alipore in Revision Case No. 339 of 1998 thereby setting aside order No. 39 passed by the learned Civil Judge, Junior Division, 2nd Court, Alipore in title Suit No. 72 of 1992.
2. The opposite party filed the aforesaid Title Suit No. 72 of 1992 for eviction of the Petitioner on the ground, inter alia, of reasonable requirement and violation of Clause (m), (o) and (p) of Section 108 of the Transfer of Property Act.
3. in the aforesaid suit, the present Petitioner filed an application for permission to fix up a rolling shutter at the entrance of the shop room which is the subject matter of the suit property.
4. The learned Trial Judge by order No. 39 dated August 11, 1998 allowed such application without prejudice to the rights and contentions of the parties in the suit.
5. Being dissatisfied, the opposite party preferred a revisional application u/s 115A of the CPC before the learned District Judge and by the order impugned, the learned revisional court below has set aside the order passed by the learned trial Judge.
6. Being dissatisfied, the tenant has come up in revision.
7. There is no dispute that the tenanted accommodation is a shop room where the Petitioner is running a business. For the security of the property, the Petitioner filed an application for permission to fix up a rolling shutter at the entrance of the shoproom.
8. The learned Trial Judge allowed such prayer, but the revisional court below has set aside the said order on the ground that the same will change the nature and character of the suit premises.
9. The learned revisional court below has further held that in the absence of any statutory or contractual right in favour of the tenant, the learned Trial Judge was not justified in passing the order.
10. After hearing Mr. Saha in support of the application and after going through the averment-made herein, I find that the learned revisional court below acted illegally and with material irregularity in setting aside the order impugned on the ground that the same will amount to change of the nature and character of the suit premises.
11. As rightly, pointed put by Mr. Saha that by referring a decision of Ratnamala Dasi v. Ratan Singh Bawa 1988 (1) C.L.J. 468 that fixing up a collapsible gate does not amount to addition or alteration which is permanent in character nor can fixation of gate be said to be destructive.
12. In my opinion, mere fixing up a rolling shutter at the entrance of a gate and that even by taking permission of the Court cannot amount to making addition or alteration of the property.
13. As pointed out by the learned Trial Judge that such fixation will be subject to the final decision of the suit.
14. Thus, I set aside the order impugned passed by the learned revisional court and restore the one passed by the learned Trial Judge.
15. The revisional application is thus allowed. In the facts and circumstances there will be, however, no order as to costs.
16. If xerox certified copy of the order is applied for, the office will supply the same within a fortnight from the date of application.
Dated :18-03-1999
Alternative Citation:Â (2000) 1 ILR(Calcutta) 93