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1995 DIGILAW 195 (CAL)

ARABINDA SAHA v. PROTITI CHATTERJEE

1995-06-16

BIJITENDRA MOHAN MITRA

body1995
B. M. MITRA, J. ( 1 ) THE present revisional application is directed against order No. 5 dated 12. 05. 95 passed by the 1st Court of Munsif at Barasat in Title Suit No. 200 of 1995. By the impugned order the learned Munsif has allowed an application under Order 39, Rule 7 read with section 151 of the Code of Civil Procedure. The same has been preceded by passing of order No. 3 dated 8. 5. 1995 by the learned Court below issued a show cause notice an a petition for injunction under order 39, Rule 1 and 2 of the Code of Civil Procedure upon the defendant Nos. 1 and 2 and the Court has been further pleased to direct maintenance of status quo of the suit property till disposal of the application for temporary injunction. There has been a gap in between the two orders of 4 (four) days on, inter alia, the averments made in paragraph 2 of the connected petition under Order 39, Rule 7 of the Code of Civil Procedure on the footing that the defendants are trying to disposes the plaintiffs by force and the points from the local inspection have been highlighted in the said petition. The learned Court below has granted an expert order for inspection in terms of the impugned order. ( 2 ) MR. Saktinath Mukherjee, the learned Counsel appearing on behalf of the petitioner, has taken a preliminary point in support of the contention that after amendment as introduced by the amendment of, the Civil Procedure Code in 1976 by incorporation of Clause 3 of Order 39, Role 8 of the Code of Civil Procedure and it has been submitted that before granting an order on such petition, normal rule is issuance of show cause notice and the Court can grant an expert order only in exceptional case when the Court finds by formation of its opinion that any delay would defeat the purpose of the said petition for local inspection. The amendment as it stands starts with a prefix that before making an order under Rule 6 or 7 when it appears that an object of making such order would be defeated by delay, the Court can issue such exparte interim order. The amendment as it stands starts with a prefix that before making an order under Rule 6 or 7 when it appears that an object of making such order would be defeated by delay, the Court can issue such exparte interim order. The added Sub-rule 3 makes the position clear Routing, however, the power of the Court to make an expert order where it appears to the Court that object of making the order would be defeated by delay by directing notice. Mr. Mukherjee has stated before this Court that not only an expert order under Order 39, Rule 7 has been passed but the same has been completed In derogation of the right of the revisionist petitioner to notice. Mr. Mukherjee, in aid of his submission, has also pointed out that apart from construction of the provision of amendment of order 39, Rule 8 (3) of the Code of Civil Procedure, adjudication without reason is an anachronism. According to him, law unaided by reason will not provide the Court with the key to unlock the gate of justice because right to reason cannot be conceived of uncivilized society when legal system for adjudication has been invoked. To appreciate the effect of amendment, a reference may be made from Maxwell's Interpretation of Statute which is quoted hereunder :"from the general presumption, that the same expression is presumed to be used in the same sense throughout an act or a series of cognate Acts, there follows the further presumption that a change of wording denotes a change in meaning. " ( 3 ) IN order to pinpoint the change in meaning with the inclusion and/or amendment of Clause 3 of Order 39, Rule 8 of the Code of Civil Procedure, Mr. Mukherjee has referred to an unreported decision passed by this Court In The Matter of Electrosteel Castings Limited -vs.- Apurba Kumar Dewan" where this Court has occasion to deal with the same and this Court has held in the said judgment, the extracts of which are quoted hereunder:"but after amendment Clause (3) was superadded to Order 39 Rule 8 of the Code of Civil Procedure which provides that notice is the normal rule save and except in exceptional situation where it appears that the object of making such order would be defeated by the delay. The said expression is almost couched in similar language to that of Order 39 Rule 3 of the Code of Civil Procedure where also notice is the usual rule and exparte order is capable of being passed only when the object of the same would be defeated by the delay. . . . . . The justification has to be resonant with reason about the exception where such petition can be allowed exparte. In view of the parity of language of Order 39 Rule 3 of the Code of Civil procedure the amended provision of Order 39 Rule 8 (8) of the Code of Civil Procedure should be read in similar way in similar terms. The ratio of law as expounded by the apex court in D. R. Chowla's case reported in 1993 S. C. C. 161 will squarely apply. . . . . . . " ( 4 ) MR. Mukherjee has further submitted that unless Clause 3 of Order 39, Rule 8 unless scrupulously adhered to, the said provision will become nugatory. Attention of this Court has also been further drawn to the caption of Order 39, Rule 8 namely the application for such orders are to be made after notice. According to Mr. Mukherjee, here in this case, not only an expert order has been passed without recording any reason but the same has also been executed without issuance of notice to the petitioner thereby depriving him of his right to notice. Mr. Mukherjee has also drawn the attention of the Court from some other provisions namely order 41, Rule 27 Clause 2 thereof and according to him, if the reasons are not recorded, the order will suffer from infirmity. Mr. Mukherjee has stretched his argument to the extent of that in post 1980 period, right to reason is recognised as a right as order without reason is an anachronism. ( 5 ) MR. Bhattacharjee, learned Advocate Appearing on behalf of the Opposite party, has countered the submissions of Mr. Mukherjee and he has referred to the case of Nepal Chandra Dutta -vs.- Mrinal Chandra Dutta, reported in A I R 1980 Calcutta, page 184. ( 5 ) MR. Bhattacharjee, learned Advocate Appearing on behalf of the Opposite party, has countered the submissions of Mr. Mukherjee and he has referred to the case of Nepal Chandra Dutta -vs.- Mrinal Chandra Dutta, reported in A I R 1980 Calcutta, page 184. In the cited decision this Court has held that exparte order under Order 39, Rule 7 for inventory and custody of account books held was not Invalid on the ground that the account books were not subject matter of the suit or on the ground that it was not in terms of the provisions about urgency of dispensing with notice to the defendant as contemplated under Order 39, Rule 8 (3) of the, Code of Civil Procedure. In terms of the said decision it was held that even if the said order was irregular, no interference in revision was called for as the defendant would not suffer any loss or prejudice by the said order. The said decision as cited by Mr. Bhattacharjee is distinguishable on this count that High Court did not choose to interfere in revision as defendant would not suffer any loss or prejudice by the said order and infraction of order 39, Rule 8 (3) was held to be irregular. Here the instant case is distinguishable from this cited decision as here the defendant would be deprived of his right to notice. Here in the present case, not only an interim order was passed but the same was given effect to by disentitling the defendant objector the right of notice and everything was done behind his back. This cannot be said to be a case where defendant would not suffer any serious prejudice or loss because his substantial right to notice has been taken away. The said decision was pronounced at a point of time when D. R. Chawla's case, reported in 1993 Supreme Court cases, page 161 had not seen the light of the day. The ratio of law expounded there and in view of the nexus of parity in between the provisions of Order 39, Rule 3 and Order 39, Rule 8 (3), it cannot be said that exparte ad-interim order can be passed without recording any reason. The ratio of law expounded there and in view of the nexus of parity in between the provisions of Order 39, Rule 3 and Order 39, Rule 8 (3), it cannot be said that exparte ad-interim order can be passed without recording any reason. The justification for passing an exparte order under Order 39 Rule 8 (3) of the Code of Civil Procedure has to be resonant with reason about the exception where such petition can be allowed exparte. Mr. Mukherjee, in this context, has rightly pointed out a salient distinction in between the non-recording of reason and non-existence of reason on record. Mr. Bhattacharjee has submitted that by implication it should be inferred but same is not capable of being discerned either from the reading of the impugned order or from the averments contained In the connected petition. The averments only goes to suggest in the petition under Order 39, Rule 7 of the Code of Civil Procedure, that plaintiffs are threatened to be dispossessed by force for which the remedy may lie by way of injunction but not by way of an exparte order under Order 39, Rule 7 of the Code of Civil Procedure. The vital gap of period of 4 (four) days in between the moving a petition for injunction and moving a petition for inspection is of paramount significance. Accordingly, the cited decision as mentioned herein is clearly distinguishable and does not apply in the facts and circumstances of the present case. Mr. Bhattacharjee has also referred to the decision reported in AIR 1931 Calcutta page 425 in the case of M. T. Kuti Baru Bibi v: Jitendra Nath Roy where a Single Bench of this Court held that High Court will not interfere in any revision to upset an order of the Appellate Court even if appeal does not lie with a view to restore wrong order of the Trial Court. Here in this case, it can not be said by application of the yardstick of Order 39, Rule 8 (3) of the Code of Civil Procedure that the Court would restore a wrong order in supersession of the provisions of the statue. The power of Judicial interpretation of legislative provision is a fundamental which must be exercised circumspectly regard being had to the legislative intent. The power of Judicial interpretation of legislative provision is a fundamental which must be exercised circumspectly regard being had to the legislative intent. The present provision is required to be Interpreted as indicated hereinbefore keeping in view of the scheme appearing from the language of the amendment read in its proper perspective so that the same would not be made nugatory. Accordingly, this Court finds that the Court below has misdirected itself in exercise of Jurisdiction by passing the exparte order and holding the commission in absence of the affected party by depriving him of a right to notice, particularly, when it entertains ex-parte Order 39, Rule 7 of the Code of Civil Procedure. The revisionist petitioner may suffer if he is deprived of his right of notice. Accordingly, the revisional application is allowed and the impugned order is set aside. Application allowed.