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2009 DIGILAW 717 (CAL)

SK. Ahmed Ali v. Quresha Bibi

2009-09-08

MD.ABDUL GHANI

body2009
Judgment :- (1.) The present application under Article 227 of the Constitution of India is directed against the order dated 9th April, 2008, passed by learned Civil Judge (Senior Division), Sealdah, in Title Suit No. 43 of 2003. (2.) Having gone through the materials on record including the application in question and also upon hearing the submission made on behalf of the parties concerned it could be seen that learned Trial Judge upon hearing the parties concerned and also giving due consideration to the circumstances of the matters involved in the suit was pleased to dismiss the petitioners application under Order 39 Rule 7, CPC for holding local inspection by passing the impugned order. (3.) Being aggrieved by and dissatisfied with the order impugned dated 9.4.2008, the present petitioner-plaintiff of the suit has come up before this Court for setting aside the said order. (4.) The only point for consideration is whether the impugned order dated 9.4.2008, passed by the learned Civil Judge (Senior Division), Sealdah is sustainable under the law or the same needs any interference by this Court. (5.) Learned Counsel appearing for the petitioner-plaintiff while making submission drew this Courts pointed attention to the contents of the impugned order as also some other important materials including the application under Article 227 of the Constitution of India emphatically contended that learned Court below without applying proper judicial mind and also ignoring some other important aspects of the case as also the principle of natural justice committed error in passing the impugned order and thus caused prejudice and miscarriage of justice. He further submitted that although initially pursuant to the order of the Court below local inspection concerning some points took place and the learned Pleader Commissioner submitted his report and there was an order of status quo directing the parties concerned not to make any change as to the suit property but the O.Ps. in violation of the Courts direction created some changes by constructing some shed on the south-east portion of the suit property as also on privy. In fine, learned Counsel appearing for the petitioner has emphatically urged that it is a fit case wherein the order impugned deserves to be set aside. (6.) On the other hand, learned Counsel appearing for the O.Ps. In fine, learned Counsel appearing for the petitioner has emphatically urged that it is a fit case wherein the order impugned deserves to be set aside. (6.) On the other hand, learned Counsel appearing for the O.Ps. referring to the materials on record as also the contents of the impugned order dated 9.4.2008, strongly argued that in a case like the present one, the Court below cannot be said to have committed any error or mistake in passing the impugned order inasmuch as the change, if any, has taken place in respect of the suit property, that is of course as per direction of the Kolkata Municipal Corporation. He has also argued that the order impugned being sustainable under the law deserves no interference as because the order impugned is absolutely in conformity with the totality of the circumstances involved in the suit. (7.) From the materials on record and also from the submissions of the learned Counsels for the parties concerned it could be detected that on the earlier occasion upon consideration of the plaintiff-petitioners application under Order 39 Rule 7 CPC, learned Court below was pleased to pass an order for holding local inspection in respect of certain points depicted in the petition in question and accordingly the learned Pleader Commissioner on completion of his inspection matter submitted report. It has been alleged that some change has taken place in the suit property, which is in violation of the order of status quo passed on 15.5.2003 by the learned Court below and as such in my considered view in order to ascertain the change in respect of the suit property as also to trace out the violation of the Courts order, if any, fresh local inspection has become a prime necessity. (8.) Therefore, upon due consideration to the submissions made on behalf of the parties concerned and also giving due regard to the nature and circumstances of the suit I am pursuaded to understand and believe that it is a fit case wherein further local inspection have become vitally necessary. In this view of the matter, learned Court below may be said to have committed mistake by passing the impugned order dated 9.4.2008, which is not sustainable under the law and accordingly, the order impugned being suffering from absurdity and legal infirmity needs to be set aside. In this view of the matter, learned Court below may be said to have committed mistake by passing the impugned order dated 9.4.2008, which is not sustainable under the law and accordingly, the order impugned being suffering from absurdity and legal infirmity needs to be set aside. Resultantly, the revisional application under Article 227 of the Constitution of India deserves to be allowed. Consequently, the order impugned stands set aside and the Court below is directed to pass an order for holding inspection as per prayer made on behalf of the plaintiff-petitioner in accordance with the law. Interim order of stay or otherwise, if any, be vacated. (9.) With the above observation, the application under Section 227 of the Constitution of India is disposed of. (10.) I, however, make no order as to costs.