ORDER No.     07                                                                  Date: 13/07/2023

Today is fixed for hearing of this M. A. Case.

Applicant/complainant side is present and found ready.

Ops of this M. A. Case is also found ready and has filed written objection against this M. A. application.

Heard Ld. Advocates of both sides. Considered submission.

Perused the M. A. application which has been filed by the complainant/applicant for appointment of LBS for taking actual measurement of the case flt in terms of the points mentioned in the schedule of said petition dated 29/09/2022.

It is the main point of contention and argument of the Ld. Advocate of complainant/applicant side that the case flat which to be allowed to the complainant/applicant is not of actual measurement which has been revealed in the agreement for sale and for the purpose of taking actual measurement of the said case flat there is urgent necessity of appointment of LBS.

On the other hand, it the main point of submission and argument on the part of the Ops that the said application is not maintainable and similar type of application has been filed by the applicant in Title Suit No. 267 of 2021 which is pending before the Ld. End Civil Judge (Sr. Divn.), Howrah and for that reason Ld. Advocate for the OP side pointed out that same type of prayer cannot be adjudicated by two different forums.

Over this issue, Ld. Advocate for the OP referred the case law which is reported in IV(2003)CPJ89(NC). For the purpose of arriving at just and proper decision in this M. A. Case and also for deciding the fate of the applicant filed by the complainant/applicant for appointment of a local investigation commissioner, this District Commission after going through the materials of the case record find for the interest of proper and complete adjudication of this matter and also for the interest of arriving at just and proper decision in CC Case No. 136/2021, this District Commission is of the view that the prayer of the complainant/applicant for appointment of LBS in respect of taking actual measurement of the case flat is required to allowed.

In respect of the point of argument that similar type of application has been filed before the Ld. 2^nd Civil Judge (Sr. Divn.), Howrah, this District Commission finds that the said application which has been filed at Ld. Civil Court has not yet been disposed of and for that reason it cannot be said that this instant petition which has been filed in this M. A. Case is barred by the principle of “Res Judicata”.

Thus, the case law which referred by the Ld. Lawyer of OP is also not applicable in this case.

The cumulative consideration of the above noted discussion goes to show that the prayer of the complainant/applicant for appointment of LBS in the matter of taking measurement can be allowed.

In the result, it is accordingly,

                                             Ordered

That the prayer of the complainant/applicant for appointment of LBS in the matter of taking measurement of case flat is allowed on contest.

Let Sumit Pachal be appointed as LBS.

Let Rs.4,000/- be fixed as fees of the Ld. Commissioner.

After payment of the fees of the Ld. Commissioner the writ of commission is to be issued.

The complainant/applicant side is directed to supply all the papers and documents to the Ld. Commissioner before conducting the said commission work.

In the light of the observation made above, this M. A. Case No. 51/2022 is disposed of on contest.

Let this case record be tagged with the CC Case No. 136/2021.

Dictated & corrected by me.

        President