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1995 DIGILAW 443 (CAL)

Satish Agarwal v. Tirath Singh

1995-12-11

Nripendra Kumar Bhattacharyya

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JUDGMENT Nripendra Kumar Bhattacharyya, J.: Heard the submissions of the learned Senior Advocate for the petitioners Mr. Asoke Kumar Sengupta appearing with the learned Advocate Mr. Suniti Chatterjee and the learned Advocate for the Caveator opposite party Mr, Saptangsu Basu. Considered the materials on record. 2. By the instant revisional application under s. 115 of the Code of Civil Procedure, the landlord-defendants-petitioners have challenged Order No. 79 dated 8th August, 1995, whereby the learned Judge, 13th Bench, City Civil Court, Calcutta, rejected the prayer in the application of the landlord-defendants (petitioners herein) made under Order 39, Rule 7 of the Code of Civil Procedure, read with Order 26, Rule 9 of the Code. 3. The fact on which this revision rests is that the tenant as plaintiff instituted a suit in the City Civil Court, Calcutta, being Title Suit No. 2031 of 1988, which is pending before the 13th Bench, City Civil Court. In the suit the plaintiff alleged that he is a tenant under the petitioner-landlords in respect of the suit premises comprising three tenancies, namely, room No. 11, room No. 11A and an open space of plot No. 21 of the ground floor at a monthly rental of Rs. 401-, Rs. 20/- and Rs. 20/- respectively payable according to the English Calendar month. The tenancy has been described in paragraph 1 of the plaint and the extent of the tenancy has been shown in a map annexed to the plaint which is also annexed to this revisional application and marked as Exhibit 'A' at page 17. The said statement in paragraph 1 of the plaint has been denied and/or disputed in paragraph 5 of the written statement filed by the landlord defendants (petitioners herein), wherein the landlord-defendants denied and/or disputed the correctness of the map annexed to the plaint. Thereafter issues were framed and the suit went into trial. The evidence on behalf of the defendants-landlord-petitioners was taken and the defendant as D.W. 1 deposed about the incorrectness of the plan. The landlord-defendants in cross-examination on 27th May, 1993 put question to P.W. 1, the tenant (plaintiff opposite party herein) about the correctness of the plan and P.W. 1 deposed in the negative and stated that the plan is a correct one. 4. The landlord-defendants in cross-examination on 27th May, 1993 put question to P.W. 1, the tenant (plaintiff opposite party herein) about the correctness of the plan and P.W. 1 deposed in the negative and stated that the plan is a correct one. 4. I have been informed by the learned Advocates for the parties that the plaintiff (opposite party herein) adduced evidence through more than one witnesses while the defendants (petitioners herein) adduced evidence through three witnesses wherein the defendant no. 1 figured as DW. 3. In his defence D.W. 1 challenged that the plaintiff is not a tenant in respect of plot No. 21 but he is a licensee. He has also in his examination-in-chief challenged the correctness of the plan annexed to the plaint and submitted his own plan which is Exhibit A-I. His evidence was closed on 2nd June, 1995. Thereafter, the defendant filed petition for local inspection as contemplated under Order 39, Rule 7 and local investigation under Order, 26, Rule 9 of the Code of Civil Procedure on 8th June, 1995 by an affidavit. In paragraphs 4 and 5 (4 has been mentioned twice in the petition and reference has been made to the first number of 4) the defendants have alleged that due to such dispute the local investigation by an Engineer Commissioner is necessary to bring only the absolute fact of the situation-location and/or present position and the measurement of the suit property. In paragraph 7, the points for local investigation have been given. The said petition was opposed by a written objection wherein the plaintiff in paragraph 11 aserted that he is not a licensee regarding the plot No. 21 but a tenant and further alleged that the suit is almost at its end and as such at that stage if the application of the landlord is allowed then the suit will be protracted. In this backdrop in the suit and the order impugned Mr. Sengupta contended that for the purpose of ascertaining the real position of Plot No. 21 and the measurement of the room Nos. 11 and 11A a local investigation by an Engineer Commissioner is necessary to point out the local feature and other pertinent materials of the suit property. In this backdrop in the suit and the order impugned Mr. Sengupta contended that for the purpose of ascertaining the real position of Plot No. 21 and the measurement of the room Nos. 11 and 11A a local investigation by an Engineer Commissioner is necessary to point out the local feature and other pertinent materials of the suit property. According to him, the stage of the suit should not be a consideration for the purpose of disposal of the application under Order 39, Rule 7 and under Order 26, Rule 9 of the Code of Civil Procedure. 5. Mr. Basu on the other hand contended that the order impugned being order no. 79 dated 8.8.95 passed by the learned Judge, 13th Bench, City Civil Court, Calcutta, is not a case decided within the meaning of the Explanation under s. , 15 of the Code of Civil Procedure and as such no revision is maintainable. In support of his contention Mr. Basu relied on a Division Bench decision of the Punjab and Harayana High Court in the case of Smt. Harvinder Kaur and another vs. Godha Ram and another reported in AIR 1979 (P&H) 76 , wherein in paragraph 11 it has been laid down that the test that has been laid down by the Apex Court in the case of S.S. Khanna reported in AIR 1964 SC 497 has already been explained by the Supreme Court in the case of Baldevadas Shivalal reported in AIR 1970 SC 406 and according to the tests laid down there in the order of refusal of appointment of Commissioner for local inspection as contemplated under Order 26, Rule 9 CPC is not a case decided within the meaning of the Explanation under s. 115 of the Code of Civil Procedure. In the next place, Mr. Basu contended that an application under Order 26, Rule 9 CPC should not be allowed for the purpose of fishing out evidence and in this connection Mr. In the next place, Mr. Basu contended that an application under Order 26, Rule 9 CPC should not be allowed for the purpose of fishing out evidence and in this connection Mr. Basu relied on a decision of a Division Bench of this Court in the case of The Institution of Engineers (India) and another v. Bishnu Pada Bag and another reported in AIR 1978 Cal 296 , wherein it has been laid down that an application under Order 39, Rule 7 CPC for the purpose of inspection should not be allowed for the purpose of collecting evidence and in support of that proposition the Division Bench relied on a decision of the Apex Court viz. AIR 1961 SC 218 (Padam Sen vs. State of U.P.). 6. Heard the submissions of the learned Advocates for the parties and considering the materials on record, it appears to me as the record shows that from the time of filing the written statement it was known to the defendants-petitioners-landlord about the position of the tenancy and whether the plaintiff-tenant was a licenses in respect of plot no. 21 Even from the deposition of the plaintiff i.e. P.W. 1, it was extracted from him in his cross-examination held on 27.5.93 that the plan is a correct one, as annexed to the plaint and the challenge was thrown to that effect in cross-examination. So that position was known even in the month of May, 1993, but the defendant sat idle over this matter for the purpose of bidding time. He allowed the matters to go on and even after the stage of evidence when the matter awaiting arguments he came forward with an application for local investigation. In my view, this is nothing but to fill up the lacuna in the evidence of the defendants landlords. In other words, for the purpose of fishing out evidence, the defendants could not supply evidence and according to the decision of this Court in the case of the Institution of Engineers (India) and another (supra) such practice should not be allowed if this is for the purpose of fishing out evidence. In other words, for the purpose of fishing out evidence, the defendants could not supply evidence and according to the decision of this Court in the case of the Institution of Engineers (India) and another (supra) such practice should not be allowed if this is for the purpose of fishing out evidence. I am not unmindful that can be relied is on the point of Order 39, Rule 7 of the Code of Civil Procedure but that principle can be applied even in case of local investigation under Order 26, Rule 9 of the Code of Civil Procedure and for that purpose the principle should be extended. As it is a play to protract the litigation I find that the learned Trial Judge has come to a correct finding and in that he has not overstepped his jurisdiction vested in him by law or acted in excess of his jurisdiction or failed to do 'proper justice or acted illegally and with material irregularity. 7. For the aforesaid reasons as recorded above, I do hereby dismiss this revisional application, I make, however, no order as to costs. Application dismissed.