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2010 DIGILAW 784 (CAL)

Subhas Khan v. Provash Khan

2010-07-09

JYOTIRMAY BHATTACHARYA

body2010
Judgment : This application under Article 227 of the Constitution of India is directed against an order dated 22nd December, 2009 passed by the learned Civil Judge, Junior Division, Fifth Court at Howrah, in Title suit No. 171 of 2009 by which the defendants’ application for local inspection was allowed by the learned Trial Judge, at the instance of the plaintiff/petitioner. Heard the learned Advocates of the parties, considered the materials on record including the order impugned. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. The plaintiffs filed a suit for declaration for declaring that the defendants had/has no manner of right, title, interest or possession in respect of the property as described in schedule A-1 in the plaint or any portion thereof. The plaintiff also has prayed for an injunction for restraining the defendant, his men and agents from disturbing their peaceful possession by making any construction in A-1 schedule property in any manner whatsoever. Admittedly, the defendant is the brother of the plaintiff. It is stated in the plaint that originally the entire property as mentioned in the schedules A and B were owned and possessed of, by the mother of the parties, namely, Smt. Kamalabala Khan. She executed three gift deeds on 18th December, 2002. By one of such gift deeds, the property mentioned in the item No.1 of the schedule A was given to the plaintiff No.1 exclusively. By the other deed of gift, the property mentioned in item No.2 of schedule A was given to plaintiff No.2 exclusively. After amalgamation of those two items of property, those gifted properties as it stands now, was mentioned in schedule A-1 in the plaint. By another deed of gift, the property mentioned in schedule B of the plaint was gifted to the defendant exclusively. Thus, the title of the defendant in respect of the B schedule property is not disputed by the plaintiff. The dispute is with regard to A-1 schedule property. In such a suit the plaintiff filed an application for temporary injunction for restraining the defendants from disturbing their possession in respect of A-1 schedule property till the disposal of the suit. An ad-interim order of injunction was also prayed for by the plaintiff in the said application. The dispute is with regard to A-1 schedule property. In such a suit the plaintiff filed an application for temporary injunction for restraining the defendants from disturbing their possession in respect of A-1 schedule property till the disposal of the suit. An ad-interim order of injunction was also prayed for by the plaintiff in the said application. Ad interim order of injunction was passed in the said suit in favour of the plaintiffs. The defendants appeared in the said suit and filed an application under Order 39 Rule 4 read with Section 151 of the Code Civil Procedure inter alia praying for discharging, varying, setting aside and/or vacating the said adinterim order of injunction on the ground that the said order of injunction was obtained by the plaintiffs by suppressing the materials facts. Though, the defendant did not challenge the plaintiffs’ title in A-1 schedule property but the defendant claimed that the defendant was inducted as a tenant by his mother in respect of the A-1 schedule property even before the said property was gifted in favour of the plaintiff by the deed of gift executed by their mother. The defendant further claims that after the said property was gifted in favour of the plaintiffs, the defendant became the tenant in respect of the A-1 schedule property under the plaintiffs. The defendant further claims that the defendant is carrying on his business in the factory shade standing in the A-1 schedule property and as such his possession in the A-1 schedule property cannot be disturbed. The defendant thus claimed that the injunction order which was obtained by the plaintiffs without disclosing the defendant’s tenancy in respect of the A-1 schedule property, is liable to the set aside. The said application is still pending for disposal before the learned Trial Judge. To establish the existence of the said factory shed on the A-1 schedule property and his possession therein, the defendant filed an application under Order 39 Rule 7 of the Code of Civil Procedure inter alia praying for appointment of an Advocate Commissioner for holding an inspection in the said premises and for submission of this report on the following points:- 1. To go to the locale and to draw a rough sketch map of the “Suit Properties”, as mentioned in the Schedules to the plaint. 2. To go to the locale and to draw a rough sketch map of the “Suit Properties”, as mentioned in the Schedules to the plaint. 2. To note the existing nature and condition of the “Suit Properties”, as mentioned in the Schedules to the plaint. 3. To note whether there is any factory or its equipments in the suit property or not. If so, then point those in detail around the said factory. 4. To note whether there was any boundary wall or not and if so, then to note down specifically the present condition of the same. 5. To note whether the factory premises in the suit properties is in secured condition from outsiders or not. 6. To show and note down any local feature or features in respect of the suit property that may be pointed out at the time of commission work. The learned Trial Judge was pleased to allow the defendant’s said application for local inspection in part. The learned Trial Judge held that the inspection on the point Nos. 1, 2 and 3 as mentioned above, is necessary for the disposal of the said proceeding for injunction. The learned Trial Judge further held that inspection on the other points as mentioned in point Nos. 4, 5 and 6, is not necessary for the disposal of the injunction proceeding. Thus, the learned Trial Judge rejected the defendant’s prayer for inspection in respect of the point Nos. 4, 5 and 6. The learned Trial Judge, appointed an Advocate Commission for the purpose by holding an inspection at the locale and for submission of his report on point Nos. 1, 2 and 3 above. The plaintiffs are aggrieved by the said order. Hence the plaintiffs have come before this Court with this application under Article 227 of the Constitution of India. Let me now test the propriety of the said order in the facts of the case as mentioned above. Normally, the injunction proceeding is considered on the basis of affidavits filed by the respective parties. However, the local inspection can be allowed in exceptional circumstances where the Court finds that elucidation of certain points at issue is necessary for proper adjudication of the suit and/or any interlocutory proceeding therein. It is also a settled proposition of law that the inspection cannot be allowed for collection of evidence and/or for fishing out evidence. However, the local inspection can be allowed in exceptional circumstances where the Court finds that elucidation of certain points at issue is necessary for proper adjudication of the suit and/or any interlocutory proceeding therein. It is also a settled proposition of law that the inspection cannot be allowed for collection of evidence and/or for fishing out evidence. The dispute regarding the conflicting claims of the parties relating to their possession in the suit property, is a matter to be decided on trial on evidence. Such a dispute cannot be resolved by way of inspection by the Commissioner. But at the same time, this Court cannot hold that even the dispute regarding existence of a factory shade on the suit property and/or nature and character thereof, cannot be ascertained by the local inspection, as contended by Mr. Mukherjee, learned Advocate, appearing for the plaintiff/petitioner. When in the present context, the learned Trial Judge was pleased to allow the defendant’s prayer for local inspection for ascertaining the existence of a factory shade in the suit property and/or nature and character of the suit property, this Court, sitting in this jurisdiction under Article 227 of the Constitution of India, does not think it fit to interfere with the said order. However, it is rightly pointed out by Mr. Mukherjee that when the prayer for local inspection was allowed on the prayer of the defendant, the plaintiff/petitioner ought not to have been directed to bear the cost of such inspection. This Court finds substance in such submission of Mr. Mukherjee. Accordingly, this part of the impugned order by which the plaintiff was directed to pay a sum of Rs.1,200/- towards the costs for holding local inspection, stands set aside. The defendant is directed to pay the said cost of Rs.1,200/- to the learned Advocate Commissioner for holding the local inspection in the suit premises. The impugned order is thus modified to the above extent. Remaining part of the said order will remain undisturbed. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.