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2008 DIGILAW 434 (CAL)

Harendra Prasad Shaw v. Bimal Naskar

2008-04-23

BISWANATH SOMADDER

body2008
JUDGMENT 1. Heard the learned Advocates appearing on behalf of the parties. 2. This is an application under Article 227 of the Constitution of India primarily directed against an order being order No. 106 dated 30th August, 2007 passed by the learned Civil Judge (Senior Division), 1st Court, Alipur, South 24-Parganas. By the order impugned, the learned Court below was pleased to allow an application filed by the defendant being, the opposite party herein, under Order 39 Rule 7 of the Code of Civil Procedure. 3. The facts of the case in brief as follows. 4. The plaintiffs filed the suit for recovery of khas possession and damages valued at Rs. 31,040/- sometime in the year 2000, with the following principal reliefs: "(a) A decree for recovery of khas possession of the suit property after evicting the defendant therefrom; (b) a decree for damages for the present Rs.29,000/- and any higher amount on proper ascertainment and payment of Court-fees; (c) decree for mesne profits tentatively Rs. 100/- and any higher amount on proper ascertainment after payment of additional Court-fees; (d) Order of temporary injunction;" 5. The defendant, being the tenant in respect of the suit property, filed a written statement, wherein the following statements have been made in paragraph 11: "11. With regard to statements made in paragraph No.6 this defendant does not admit that the members of the family members of the plaintiffs as stated. This defendant assertively state that the plaintiff No.1 and his family members never reside in the suit house and they have all along residing at Bihar. This defendant does not admit that the friends and relatives of the plaintiffs do not pass single night with the plaintiffs due to lack of accommodation. This defendant denies that the sons and daughters of the plaintiffs are school goars of the father and mother of the plaintiffs have been suffering from various ailments. All the statements contrary to above are hereby denied and disputed." 6. In the application under Order 39 Rule 7 read with section 151 of the Code of Civil Procedure filed by the defendant, being the opposite party herein, it was inter alia stated by the defendant that the plaintiffs have sufficient accommodation more than their requirement. All the statements contrary to above are hereby denied and disputed." 6. In the application under Order 39 Rule 7 read with section 151 of the Code of Civil Procedure filed by the defendant, being the opposite party herein, it was inter alia stated by the defendant that the plaintiffs have sufficient accommodation more than their requirement. It has also been stated by the defendant that apart from the suit property the plaintiffs have two other flats and one four-storied building which are nearby the suit property. A part of another statement made in the said application by the defendant is that the plaintiffs have concealed their best piece of evidence to show that extent of accommodation and as such inspection was required to show the present accommodation and occupation of the plaintiffs. 7. The points for local inspection were enumerated in detail in the annexure• to the aforesaid application of the defendant. 8. The plaintiffs filed objection against the aforesaid application wherein it has been inter alia stated in paragraph 8 as follows: "8. The plaintiffs state that it is the provisions of law that it is the due of the parties to prove their pleadings either by adducing evidence or by producing documents but they can not prove their pleading by collecting evidence through commission. If any party to the suit suppressed by material of facts then he or they would not get any relief from this learned Court for which there is no need to hold commission work. Moreover plaintiffs have instituted this suit in the year 2000. Defendant filed written statement but he did not disclose that beside the suit house plaintiffs have other accommodation. Subsequently defendant though incorporated some pleadings by way of amendment but at the time of cross-examination of PWs he did not filed any iota evidence in support of his pleading. On the other hand plaintiffs have categorically stated in paragraph-7 of the plaint of this suit that they are the owners of premises No 69/1/1, Chetla Road, PS Alipore, Calcutta-700027 wherein they have been carrying on their business. In that support they have filed 4 trade licences to prove their statement. On the other hand plaintiffs have categorically stated in paragraph-7 of the plaint of this suit that they are the owners of premises No 69/1/1, Chetla Road, PS Alipore, Calcutta-700027 wherein they have been carrying on their business. In that support they have filed 4 trade licences to prove their statement. Besides that as the plaintiffs have not sufficient accommodation for running their business, they have taken one Godown and one office room on rental basis and in support of their statements they filed rent bills and as such there is no need to hold commission at the said rented premises. It is the duty of the defendant to prove his pleading either by evidence or by supporting documents. On failure to do so the defendant is trying to prove his pleading by collecting evidence through commission which law deprecates. Moreover the defendant has filed this application with view to delay and drag the proceedings of this suit. However defendant did not disclose throughout his application for which reason the local inspection is required." 9. The learned Advocate appearing on behalf of the petitioners submits that the learned Court below while allowing the application under Order 39 Rule 7 of the Code of Civil Procedure, at a stage when peremptory hearing was about to commence and when evidence had already been led by the parties, in effect allowed the defendant to try and fish out evidence to better their defence by use of the report of the Advocate Commissioner, which was impermissible in law. He also submits that having regard to the fact that evidence has already been led, the order of the learned Court below would only allow the defendant to plug their existing loopholes by allowing the report of the Advocate Commissioner to be placed on record before the Court at this late stage, thereby allowing such evidence which is not already on record, to be brought in by a circuitous process, by the defendant. 10. The learned Advocate appearing on behalf of the opposite party, on the other hand, submits that the order passed by the learned Court below does not amount to an order by which any evidence could be fished out, nor would it be an exercise by the Advocate Commissioner to carryon a roving enquiry for collecting evidence. 10. The learned Advocate appearing on behalf of the opposite party, on the other hand, submits that the order passed by the learned Court below does not amount to an order by which any evidence could be fished out, nor would it be an exercise by the Advocate Commissioner to carryon a roving enquiry for collecting evidence. He submits that by the report of the Advocate Commissioner, the learned Trial Court will be able to get the real picture of the questions that have arisen in respect of the subject-matter of controversy between the parties. 11. After considering the submissions made by the learned Advocates and upon perusing the instant application and the order impugned and taking note of the facts as enumerated above, I have not been able to understand as to what prompted the learned Trial Court to appoint an Advocate Commissioner at this stage of the proceeding under Order 39 Rule 7 of the Code of Civil Procedure. 12. It is necessary to have a look mto the said provision of law which is reproduced herein-below: Order 39 Rule 7 "7. Detention, preservation, inspection, etc., of subject-mattes of suit.-(1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit,- (a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purpose aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. (2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule." 13. From a plain reading of the above Rule it is clear that the Court has been given wide discretion in order to make an order for detention, preservation, inspection etc. on the subject-matter of suit, or as to which any question may arise therein. From a plain reading of the above Rule it is clear that the Court has been given wide discretion in order to make an order for detention, preservation, inspection etc. on the subject-matter of suit, or as to which any question may arise therein. This does not mean that the Court will pass an order under Order 39 Rule 7 of the Code of Civil Procedure oblivious of the fact that evidence has not only been adduced by the parties, but also closed by the learned Trial Court and it was not at all proper for the learned Trial Court to have passed the order impugned which, in my view, would amount to miscarriage of justice. The learned Trial Court should have taken note of all aspects of the case, particularly that the defendant cannot be allowed to improve his defence after evidence has been closed, by filing such application and consequently obtaining a report from the Advocate Commissioner, which would only provide an opportunity to the defendant to better his defence, which he could not have otherwise done. 14. For the reasons stated above, the impugned order is set aside and the learned Trial Court is directed to hear out and dispose of the suit pending since the last eight years as expeditiously as possible, preferably within a period of six months, but not later than eight months from the date of communication of this order without granting unnecessary adjournments to any of the parties. 15. The revisional application stands allowed accordingly. 16. Urgent xerox certified copy of this order, if applied for, be supplied to the parties on priority basis. Revisional application allowed.