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2008 DIGILAW 465 (CAL)

Satyanarayan Das v. Prabhunath Keshri

2008-04-30

BISWANATH SOMADDER

body2008
JUDGMENT 1. By consent of the parties, let this matter be treated as on day's list as 'Motion'. 2. Heard the learned Advocates appearing on behalf of the parties. 3. This is an application under Article 227 of the Constitution of India primarily directed against an order, being Order No.3 dated 27th September, 2004, passed by the learned Civil Judge (Junior Division), 2nd Court at Asansol in Title Suit No. 177 of 2004. 4. The order impugned has been passed by the learned Court below in an application filed by the plaintiffs under Order 39 Rule 7 read with section 151 of the Code of Civil Procedure. 5. From the records it appears that the opposite party Nos. 1 and 2 herein, instituted a suit, being Title Suit No. 177 of 2004, before the learned Court below inter alia praying for the following reliefs: a) For a decree of declaration that the plaintiffs are tenant under the defendants in respect of the suit premises in schedule below. b) For a decree of mandatory injunction be passed in favour of the plaintiffs directing the defendants to open and remove their locks from the door of the suit premises and in default the plaintiffs may be permitted to break and remove the locks of the defendants. c) For a decree of permanent injunction be passed restraining the defendants from disturbing the plaintiffs in any way in course of running their business in and from the suit premises hereto. 6. In paragraphs 11 and 12 of the plaint following statements have been made: Paragraph 11.-That it is painful to the plaintiffs that on 18.09.04 at night when the plaintiffs left the suit premises after keeping the suit premises under lock and key then the defendants most illegally locked the door of the suit premises by his, own locks and on the next day morning La. on 19.09.04 when the plaintiff's again went to the suit premises then saw that the shop room is locked by some other locks in addition to their locks and on enquiry the defendants stated the plaintiffs that they have locked the door and the plaintiffs shall not be allowed to enter into the shop room and run their business as tenant. It is further to be mentioned here that on 18.09.04 in the evening very tactfully the defendants with the consent of the plaintiffs kept an old scooter inside the suit room with the plea that tomorrow morning we shall bring out the scooter. Paragraph 12.-That the plaintiffs with folded hands requested the defendants to open the locks out was to no result rather they threatened the plaintiffs with dire consequences and as a result the plaintiffs now suffering from lots of troubles as they can not running their business. 7. In paragraph 12 of the written statement, the defendants have controverted paragraph 11 of the plaint and have stated as follows: "That the allegation made in para 11 is false, fraudulent and engineered for the purpose of the suit. It is false to say that plaintiffs were allowed to occupy the premises on or before 19.9.2003 and they left the premises after keeping the same under lock and key. As a matter of fact the premises was under defendants possession, control and locked. It is false to say that defendant kept their scooter and other articles on consent of the plaintiff. Allegations to the contrary are denied. 8. In the plaintiffs' application for local inspection under Order 39 Rule 7 read with section 151 of the Code of Civil Procedure, the following points were set out for the purpose of holding inspection:- a) To note the nature and character of the suit premises as mentioned in the plaint. b) To note how many locks are there on the door/shutter of the suit premises. c) To note any other local feature of the suit premises which is to be shown to the ld. Commissioner at the time of holding local inspection. 9. While allowing the plaintiffs' application under Order 39 Rule 7 of the Code of Civil Procedure, the learned Court below made the following observations: "... It appears from the record that (there is a) dispute in between the plaintiffs and defendants in respect of the suit premises. The plaintiffs claim that the defendants have put a lock on the suit premises which was already locked by the plaintiffs. I have thoroughly gone through the contents of petitioner and the points upon which the local inspection is prayed for. In my opinion, the points raised are the necessary points for proper adjudication of the petitions and the suit. The plaintiffs claim that the defendants have put a lock on the suit premises which was already locked by the plaintiffs. I have thoroughly gone through the contents of petitioner and the points upon which the local inspection is prayed for. In my opinion, the points raised are the necessary points for proper adjudication of the petitions and the suit. Beside that if the petitioner is allowed, there shall be no harm as irreparable loss and injury to the defendants." 10. Learned Advocate appearing on behalf of the petitioners, being the defendants in the suit pending in the Court below draws this Court's attention to a judgement of a Division Bench of this Hon'ble Court in the case of Institution of Engineers (India) & Anr. vs. Bishnn Pada Bag & Anr., reported in AIR 1978 Calcutta page 296. Relying on the said judgement, the learned Advocate for the petitioners submits that no commission can be issued for the purpose of collecting evidence in a suit. 11. On the other hand, the learned Advocate appearing on behalf of the opposite parties herein, being the plaintiffs in the suit pending in the learned Court below, submits that the learned Court below had passed an order taking note of the facts pleaded by the respect parties and there was no question of collection of evidence by the Commissioner appointed in terms of the order impugned: 12. After considering the submissions made by the learned Advocates appearing on behalf of the parties, I am of the opinion that the provision of Order 39 Rule 7 of the Code of Civil Procedure, requires to be looked into in order to determine whether in the facts of the instant case, the order impugned ought to have been passed by the learned Court below: Order 39 Rule 7. "Detention, preservation, inspection, etc., of subject-matter 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 authorise 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. In the facts of the instant case, it appears that the plaintiffs in paragraphs 11 and 12 of the plaint have categorically stated that on 18th September, 2004, at night when the plaintiffs left the suit premises, after keeping the suit premises under lock and key, the defendants locked the door of the suit premises with their own locks and on the next day morning, i.e. on 19.09.04, when the plaintiffs again went to the suit premises, they saw that the shop room was locked by some other locks in-addition to their locks. It has also been stated that the plaintiffs had requested the defendants to open the locks but with no result and instead the plaintiffs were threatened with dire consequences. 14. In paragraph 12 of the written statement the defendants have denied the allegations made in paragraph 11 of the plaint and stated inter alia that the premises were under the defendants possession and/control and locked. 15. On a plain reading of the applicable provision of law, based on which the order impugned has been passed, this Court finds that the legislature has given wide discretion to a Court to ensure detention, preservation, inspection of a subject-matter of suit or as to which any question may arise therein. (emphasis supplied by this Court). 15. On a plain reading of the applicable provision of law, based on which the order impugned has been passed, this Court finds that the legislature has given wide discretion to a Court to ensure detention, preservation, inspection of a subject-matter of suit or as to which any question may arise therein. (emphasis supplied by this Court). Taking note of the legislative intention and the facts and circumstances of the instant case enumerated above, particularly, the principal prayers of the suit and the statements made in paragraphs 11 & 12 of the plaint and paragraph 12 of the written statement, this Court is unable to accept the submissions made by the learned Advocate appearing on behalf of the petitioners that holding of inspection by the Commissioner appointed by the learned court under Order 39 Rule 7 of the Code of Civil Procedure would amount to collection of evidence. The judgement relied on by the learned advocate for the petitioners has no manner of application whatsoever in the facts of the instant case, because the order impugned, by no stretch of imagination can be construed as an order by which the Commissioner was appointed by the learned Court below for the purpose of collecting evidence in the suit, particularly after taking note of the principal prayers of the suit and the pleadings of the respective parties, as stated above. 16. In the aforesaid facts and circumstances, I am of the view that the order impugned does not suffer from any apparent error of law or palpable infirmity of reasoning, which would warrant interference of this Court in exercise of its powers under Article 227 of the Constitution of India. 17. The revisional application stands dismissed with costs assessed at 100 G.Ms. 18. Xerox certified copy of this order, if applied for, be given to the parties. B. Somadder, J.: Revisional application dismissed with costs.