Dismissed¶28

Shiv Prasad Dubey v. Kolkata Metropolitan Development Authority and Ors.

Calcutta HC24 Nov 2025CO/1180/2025

Case brief

AI extract

What is this about?

Local inspection versus local investigation; application for local inspection by plaintiff in Title Suit No.1162 of 2018 rejected and upheld; fishing out evidence; commissioner's report; Order 39 Rule 2A of the Code not invoked; temporary injunction and mandatory injunction; garden cum island obstructing ingress and egress of customers; garden-cum-island not part of suit property; Kolkata Metropolitan Development Authority (K.M.D.A.); railway; Howrah; Civil Judge (Junior Division), 3rd Court; C.O. 1180 of 2025; Shampa Sarkar, J.

What did the court decide?

This Court does not find any proceeding to have been initiated alleging violation of the injunction order by construction of the garden cum island. ¶25

Shiv Prasad Dubey Vs Kolkata Metropolitan Development Authority and Ors. — Calcutta HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶28

Issue for consideration

Whether the learned Civil Judge rightly rejected the petitioner-plaintiff's application for local inspection in Title Suit No.1162 of 2018. +1 more

¶13

Court's answer

The court below had rightly rejected the application, even if its reasoning was not happy; the final order of rejection is correct.

¶27

Ratio / Principle

This Court does not find any proceeding to have been initiated alleging violation of the injunction order by construction of the garden cum island.

¶25

Key takeaways

It is for the plaintiff to prove his positive case of blocking the ingress and egress in support of the prayers for permanent injunction and mandatory injunction.ratio¶25
If a commissioner has to report on the existence of the garden-cum-island, allowing local inspection in this regard will amount to permitting fishing out of evidence.ratio¶27
The existence of the garden-cum-island can be proved by leading evidence.ratio

Detailed headnote1 paragraphs

C.O. 1180 of 2025 (decision dated 24.11.2025, Shampa Sarkar, J.): Dismisses the petitioner-plaintiff's challenge to the order dated March 4, 2025 of the Civil Judge (Junior Division), 3rd Court at Howrah rejecting his application for local inspection in Title Suit No.1162 of 2018. The suit, originally for declaration that the plaintiff is a licensee and for permanent injunction, with a temporary injunction operating in his favour, was amended to allege that a 'garden cum island' was constructed in front of the two shop rooms in violation of the injunction order, blocking customers' ingress and egress, with an added prayer for mandatory injunction for removal. Held: (i) no proceeding was initiated for the alleged violation of the injunction order; (ii) the plaintiff must prove his positive case of blocked ingress/egress by leading evidence — a commissioner reporting on the mere existence of the garden-cum-island would amount to permitting fishing out evidence; (iii) the prayer for local inspection was not made in aid of any proceeding under Order 39 Rule 2A of the Code; and (iv) the garden-cum-island is not a part of the suit property. The final order of rejection is correct, even if the trial court's reasoning (local investigation vs local inspection) was not happy. Parties directed to act on the server copy.

¶1

Item No. 38 24.11.2025 Court. No. 6 GB

C.O. 1180 of 2025

Shiv Prasad Dubey

Vs.

Kolkata Metropolitan Development Authority & Ors.

¶6

Mr. Shibaji Kumar Das, Ms. Parbati Mondal

¶7

… for the Petitioner.

¶8

Mr. Satyajit Talukdar, Mr. Arindam Chatterjee

¶9

… for the K.M.D.A.

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Mr. Partha Ghosh, Mr. Rishav Kumar Thakur

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… for the Opposite Party Nos.2 & 3.

¶12

By the order dated March 4, 2025, the learned Civil Judge (Junior Division), 3^rd Court at Howrah rejected an application for local inspection filed by the plaintiff in Title Suit No.1162 of 2018. The plaintiff is the petitioner. The plaintiff is enjoying an order of temporary injunction.

¶13

The learned court was of the view that, as the plaintiff was alleging encroachment by construction of a garden cum island in front of two shop rooms, which were in the possession of the plaintiff, the plaintiff ought to have prayed for local investigation and not local inspection. The plaintiff is aggrieved by the rejection of the application for local inspection.

¶14

It is submitted that local inspection is necessary to ascertain the exact position of the garden cum island . Other local features are also required to be ascertained.

¶15

¶16

Mr. Das, learned advocate for the petitioner submits that the suit was originally filed for declaration and permanent injunction. A decree for declaration that the plaintiff was a licencee in respect of the suit properties and a further declaration that the defendants did not have any right to interfere with the possession of the suit properties. The suit property comprised of two shop rooms. The plaint was amended and certain pleadings were sought to be incorporated with regard to the alleged violation of order of injunction and construction of a garden cum island in front of the shop rooms.

¶17

According to the plaintiff, the said shop rooms prevented the ingress and egress of the customers and a prayer for mandatory injunction was also incorporated in the prayer portion of the plaint. The plaintiff, inter alia, prayed for a direction of removal of the said garden cum island and restoration of the space in front of the shop rooms, to its original position.

¶18

The learned court was of the view that the plaint case was based on encroachment by the defendants and as such, the local inspection would not yield any fruitful result.

¶19

Mr. Das, submits that this was an incorrect observation of the learned court. The plaint case was that, a construction of the garden cum island in front

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of the shop rooms was interfering with the ingress and egress of the customers.

¶22

Mr. Talukdar, learned advocate for the opposite party no.1 submits that the local inspection is being prayed for only to fish out evidence.

¶23

Mr. Thakur, learned advocate for the railway submits that the petitioner does not have any right to continue with the shop rooms as the licences have long expired. They are enlarging the scope of the suit by making such frivolous prayers.

¶24

Having heard the rival contentions of the parties, this Court finds that, originally the suit was for declaration and permanent injunction. The prayers were for a declaration that the plaintiff was a licensee in respect of the suit premises under the defendant no.1 and further declaration that, the defendants did not have any right to interfere with the plaintiff’s possession of the suit premises. An order of injunction was passed in favour of the plaintiff, restraining the defendants from interfering with the possession. It is submitted that the plaintiff is still in possession but the defendant No. 1 violated the order of injunction.

¶25

Although it is alleged that the garden cum island was constructed in violation of the order of injunction, this Court does not find any proceeding to have been initiated alleging such violation. Thus, it is for the plaintiff to prove his positive case of blocking the ingress and egress, etc., in support of the prayer for

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¶27

permanent injunction and also the prayer for mandatory injunction. If a commissioner has to report on the existence of such garden-cum-island, allowing local inspection in this regard will amount to permitting fishing out evidence. The court had rightly rejected the application, even if the reasoning was not happy. The final order of rejection is correct. The existence of the garden-cum-island can be proved by leading evidence. Such prayer for local inspection has not been made in aid of any proceeding under Order 39 Rule 2A of the Code. Moreover, the garden-cumisland is not a part of the suit property.

¶28

Accordingly, the application is dismissed.

¶29

Parties are directed to act on the basis of the server copy of this order.

¶30

(Shampa Sarkar, J.)

Shiv Prasad Dubey v. Kolkata Metropolitan Development Authority and Ors.

Case brief

What is this about?

What did the court decide?

Shiv Prasad Dubey v. Kolkata Metropolitan Development Authority and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

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