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1979 DIGILAW 232 (CAL)

Santilata Mitra v. Aimal Kumar Lahiri

1979-06-27

G.N.Roy

body1979
JUDGMENT 1. THIS Rule is directed against order No. 75 dated March 3, 1979 and Order No. 76 also passed on March 3, 1979. The learned Judge by the first order, namely Order No. 75 rejected the application for adjournment made by the: opposite party. The learned Counsel appearing for the petitioner in the instant Rule submits that the learned Judge hay not disclosed the reasons why the application for adjournment was rejected The learned Counsel submits that the reasons given in the application for adjournment are got to be considered by the learned Judge and after applying his judicial mind the learned Judge may allow the application or reject the application by giving reasons in the order. The learned Counsel submits that a mere cryptic order was passed without assigning any reason. There is force in the said submission of the jearned Counsel But in view of the order which T am going to pass in respect of Order No. 76 which is also under challenge in the instant Revisional app0lication no decisions of this Court is called for in respect of Order No. 75 the impugned order No. 76 may be set out hereunder : petition under Order 39 Rule 7 C.P.C. is put up. Heard the learned lawyer for the petitioner and the petition is allowed experts To 7.3.79 for deposit Rs. 50/- as cost of commission. 2. THE relevant portion of the prayer made in the application under Order 39 Rule 7 of the Code of Civil procedure as made out by (he plaintiff is set out hereunder : "it is prayed that Your Honour will graciously be pleased immediately to appoint an Advocate Commissioner who shall investigate and report violation of order of injunction passed by the learned Court on 8.8.78 for maintaining status quo with regard to possession and access to the Cabins occupied by the plaintiff through common passage. . . . " Mr. Chatterjee, the learned Counsel for the petitioner contended that the learned Judge has not given any reason whatsoever for passing the said ex part order for local inspection under Order 39 Rule 7 of the Code of Civil Procedure. Mr. . . . " Mr. Chatterjee, the learned Counsel for the petitioner contended that the learned Judge has not given any reason whatsoever for passing the said ex part order for local inspection under Order 39 Rule 7 of the Code of Civil Procedure. Mr. Chatterjee contended that an application under Order 39 Rule 7 is got to be disposed of after giving the other party an opportunity of being heard and the Court must give reasons as to why the Court thought it fit to pass an order for investigation by a Commissioner under Order 39 Rule 7 of the Code of Civil Procedure. In the impugned order the learned Judge did not give any indication as to what prompted. the learned Judge to pass the impugned order. Mr. Chatterjee further contended that it will also be evident from the prayer made in the said application under Order 39 Rule T which was allowed in full by the learned Judge by the said impugned order, that the commissioner should investigate and report violation of the order of injunction passed by the learned Court on August 8, 1978, for maintaining status quo. Such prayer of the plaintiff could not have been allowed under Order 39 Rule 8 of the Code of Civil Procedure. The Commissioner cannot be directed to report; violation of an interim order passed by the Court. The Commissioner can at best be directed to make inspection of certain features to be indicated by the Court and to give a report. Mr. Chatterjee submitted that it is for the Court of decide as to whether there has been a violation of the interim order passed by the Court and its adjudication cannot be delegated to the Commissioner for making a finding about such, violation. Mr. Chatterjee contended that as the Court failed to apply its judicial mind to the facts and circumstances of the case and also to the prayers made in the application under Order 39 Rule 7 of the C.P.C., the said impugned order was passed allowing the said application of the plaintiff-petitioner. 3. MR. Roy, the learned Counsel appearing for the opposite party, however, contended that although it is desirable to give reasons for passing an order for appointment of Commissioner but in the special facts and circumstance of the case, such detailed reasons were not given by the learned Judge. 3. MR. Roy, the learned Counsel appearing for the opposite party, however, contended that although it is desirable to give reasons for passing an order for appointment of Commissioner but in the special facts and circumstance of the case, such detailed reasons were not given by the learned Judge. Since the learned Judge allowed the application of the plaintiff in full, the reasons given by the plaintiff in the application under Order 39 Rule 7 of the C.P. Code must have been accepted by the learned. Judge and as such no exception should be taken by this Court simply on the, ground that no reasons were disclosed by the learned Judge in passing the impugned Order. Mr. Roy further contended that by the impugned order no is between the parties had been adjudicated and as such the order cannot be held to be an order deciding a 'case' as contemplated under Section 115 of the Code of Civil Procedure and, accordingly, interference under Section 115 of the C.P.C. is not called for, For this contention Mr. Roy relied on a decision of the Supreme Court made in the case of Baldevdas Shival vs. Filmistan Distributors (India) Pvt. Ltd. reported in A.I.R. 1970 SC at page 406. The supreme Court in the said case held that the expression "case" is not limited in its import to the entirety of the matter in dispute in an action, but the expression "case" is a word of comprehensive import; it includes a civil proceedings and is not restricted by anything contained in Section 115 of the Code to the entirety of the proceedings in a Civil Court. To interpret the expression "case" as an entire proceeding only and not a part of the proceeding imposes an unwarranted restriction on the exercise of powers of superintendence and may result in denying relief to the aggrieved litigant where it is most needed and may result in the preparation of gross injustice. But every order of the Court in the course of a suit does not amount to a case decided. But every order of the Court in the course of a suit does not amount to a case decided. A case may be said to be decided, if the Court adjudicates for the purpose of the suit some of the obligations of the parties in controversy every order in the suit cannot be regarded as a 'case decided' within the meaning of Section 115, In the aforesaid decision of the Supreme Court, the question arose as to whether by overruling an objection to a question put to a witness and allowing the question to be put, any case was decided within the meaning of Section 115 of the Code of Civil Procedure. Mr. Roy contended that in the instant case, no is between the parties or rights and obligations between the parties had been decided by the impugned order but the impugned order was only passed for taking certain steps for the purpose of deciding the controversy raised in the suit. 4. IT is true that during the course of a legal proceeding, various orders are passed by the Court but all orders do not decide rights and obligations between the parties and all such orders which do not deride rights and obligations between the parties and which do not conform to proviso to section 115 (as amended) cannot be challenged in revision under section 115 of the C.P. Code Order 39 Rule 7 of the C.P. Code indicates that some allegation have been made by one party against another in respect of the subject matter of the suit and if the Court allows a prayer of a party under Order 39 Rule 7 of the C.P.C. the Court Is prima facie satisfied that there is necessity of detention or preservation or inspection of the property as alleged by the party making the application. In such circumstances the Court is required to form a prima facie opinion that a case for detention or preservation or inspection of the subject matter of the suit has been made out by a party and for proper action, investigation by a commission is required to be made. In such circumstances the Court is required to form a prima facie opinion that a case for detention or preservation or inspection of the subject matter of the suit has been made out by a party and for proper action, investigation by a commission is required to be made. Accordingly, against an order passed under Rule 7 Order 39 of the C.P. Code the party against whom an order is passed is entitled to move this Court in Revision under Section 115 of the C.P.C It should be noted that the expression "case decided" appearing in Section 115 C.P. Code has been considerably widened in the Explanation added to Section 115 after the amendment in 1976 and the impugned order can be challenged in revision if the conditions laid down in the proviso to Section 115 are fulfilled. The impugned order is therefore, set aside and the Rule is made absolute. The learned Judge is directed to consider the application under Order 39 Rule 7 of the C.P.C. on merit afresh and dispose of the said application after giving his reasons, there will be no order as to costs. Let the records be sent down as expeditiously as possible. Since the matter is pending in the Court for a long time, the learned Judge should dispose of the application under Order 39 Rule 7 of the C.P.C. as early as practicable. Rule made absolute. No costs.