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2011 DIGILAW 245 (CAL)

Ashok Saha v. Mira Shaw

2011-02-22

DIPANKAR DATTA

body2011
JUDGMENT : 1. The petitioner is the defendant (hereafter the defendant) in a suit for ejectment and mesne profit instituted by the opposite party (hereafter the plaintiff). Reasonable requirement is one of several grounds taken by the plaintiff for securing eviction of the defendant. He is contesting the suit by duly filing his written statement of defence. 2. While the suit was progressing, three separate tenants allegedly vacated possession of three shop rooms in favour of the plaintiff in the suit premises and she has since been running business therefrom. The defendant intended to incorporate such fact in his written statement and, accordingly, filed an application under Order VI Rule 17 of the Code of Civil Procedure (hereafter the Code) for amendment of his written statement. 3. At the same time, the defendant filed an application under Order XXXIX Rule 7 of the Code. The points for local inspection as indicated in such application read as follows : “1. To note how many rooms in the suit building at premises no.1 Manmotho Nath Ganguly Road, Kolkata-700 002; 2. How many rooms and shop rooms under the possession and enjoyment of the petitioner and her family members and the measurement and made of user of the rooms at the Suit Premises. 3. To draw a sketch map of suit premises. 4. Local features pointed out by the petitioner and Opp. Party at the time of holding commission.” 4. The plaintiff contested the application by filing a written objection. It is noted that at a prior point of time, she herself had filed an application under Order XXXIX Rule 7 of the Code praying for inspection on the following points : “1. To note how many room/rooms under the occupation of the petitioner and measurement and mode of user and to draw a sketch map of the Premises No.1 Manmotho Nath Ganguly Road, Police Station-Chitpore, Kol-2; 2. Any local features as pointed out by the parties”. 5. The learned advocate commissioner appointed by the learned Trial Court had submitted his final report dated May 4, 2005. In so far as point No.1 is concerned, he had mentioned that the plaintiff was in occupation of only one room on the “ just back side of the ground floor of the Premises No.1, Manmotho Nath Ganguly Road, Purba Kolkata-700 002”; the measurement thereof from East to West being 15 ft. In so far as point No.1 is concerned, he had mentioned that the plaintiff was in occupation of only one room on the “ just back side of the ground floor of the Premises No.1, Manmotho Nath Ganguly Road, Purba Kolkata-700 002”; the measurement thereof from East to West being 15 ft. 3 inches and from North to South being 10 ft. 7 inches. He had also included in his report his comments on the mode of use of such room. Regarding point no.2 he did not make any comment since the parties did not point out any feature. 6. The learned advocate commissioner has since been examined as PW 2 and his report marked Exhibit-6.7. The learned Trial Judge took up the application of the defendant under Order XXXIX Rule 7 of the Code for consideration. He examined the application filed by the defendant as well as the application previously filed by the plaintiff, and found that points of inspection no. 2 and 4 in the application filed by the defendant were identical to the points on which inspection was sought for by the plaintiff. He was of the view that a clear picture regarding extent of accommodation available to the plaintiff in the suit property had already come up before the Court and that the defendant was seeking a re-commission on the basis of alleged subsequent developments. According to the learned Judge, the defendant had to prove the fact of acquisition of additional rooms by the plaintiff by producing evidence in that regard and it is only after he is successful in establishing his plea that he could pray for local inspection to bring out a clear picture of the shape, size and extent of the accommodation at the disposal of the plaintiff. It was further observed that directing local inspection without proof of such acquisition would amount to fishing out of evidence, which is not permissible in law, and the learned advocate commissioner could not be expected to decide who was in possession of the individual rooms in the suit property by demanding evidence from the parties at the locale. For such reasons, the learned Judge by order no.69 dated April 22, 2010 rejected the application under Order XXXIX Rule 7 of the defendant. 8. This order is under challenge in the present application under Article 227 of the Constitution. 9. Mr. For such reasons, the learned Judge by order no.69 dated April 22, 2010 rejected the application under Order XXXIX Rule 7 of the defendant. 8. This order is under challenge in the present application under Article 227 of the Constitution. 9. Mr. Ghosh, learned advocate appearing in support of the application submitted that the learned Judge erred in exercising jurisdiction vested in him by declining local inspection as prayed for by the defendant. According to him, the observation of the learned Judge that it was the obligation of the defendant to produce evidence first in support of his plea that the plaintiff had acquired three rooms during the progress of the suit is vitiated by irregular exercise of jurisdiction. The learned Judge, he contended, failed to appreciate that when the plaintiff applied under Order XXXIX Rule 7 of the Code, she had not been called upon to produce any evidence regarding the extent of accommodation available to her in the suit premises, yet, obtained an order for local inspection and the report has since been marked as exhibit. If indeed the plaintiff could have her application allowed, there was no rational basis in similar circumstances to subject the defendant to discrimination and reject his prayer. In support of his submission that the High Court in exercise of power under Article 227 ought to interfere and set aside the order impugned with further direction to allow local inspection, as prayed for, Mr. Ghosh relied on the decision of the Supreme Court reported in AIR 1988 SC 2126 (Southern Command Military Engineering Services Employees Coop Credit Society vs. V.K.N. Nambiar). 10. The application was opposed by Mr. Ganguly, learned adovcate for the plaintiff. According to him, the application filed by the defendant is nothing but an attempt to collect evidence which an advocate commissioner, acting under orders of Court passed in terms of Order XXXIX Rule 7 of the Code, is incompetent to collect. In support of his submission, the Bench decision of this Court reported in AIR 1978 Cal 296 [The Institution of Engineers (I) & anr. vs. Bishnupada Bag & anr.] was relied on. He, accordingly, prayed for rejection of the revisional application. 11. I have heard learned advocates for the parties. In support of his submission, the Bench decision of this Court reported in AIR 1978 Cal 296 [The Institution of Engineers (I) & anr. vs. Bishnupada Bag & anr.] was relied on. He, accordingly, prayed for rejection of the revisional application. 11. I have heard learned advocates for the parties. It is the settled position of law that a local inspection under Order XXXIX Rule 7 of the Code is not intended to be ordered for collecting evidence from the parties or other person who might be present at the locale at the time of inspection but ought to be confined, inter alia, to inspection of any property, being the subject matter of the suit, to the extent it is necessary for proper adjudication of the issue involved therein. Keeping this in mind, I am unable to hold that by refusing inspection on points 2 and 4 (supra) of the application filed by the defendant, the learned Judge acted in flagrant abuse of the fundamental principles of law and justice thereby rendering his order liable to interdiction. Whether or not the opposite party has acquired possession of three additional rooms is a factual aspect which, as rightly observed by the learned Judge, requires to be proved by the defendant in course of trial. The order rejecting inspection on points 2 and 4 is thus upheld. 12. However, the learned Judge in my opinion erred in rejecting the prayer for local inspection regarding points 1 and 3 of the application for local inspection without assigning any reason at all. In fact, the order impugned bears reflection of the learned Judge’s application of mind in respect of points 2 and 4 and the consequent opinion given in respect thereof. Points 1 and 3 seem to have altogether escaped the attention of the learned Judge while he was in the process of assigning reasons as to why no inspection ought to be ordered in respect of points 2 and 4. The defendant in law was entitled to a decision as to why points 1 and 3 did not require any answer by way of local inspection. To this extent, the order impugned is indefensible. 13. The application, accordingly, succeeds in part. The defendant in law was entitled to a decision as to why points 1 and 3 did not require any answer by way of local inspection. To this extent, the order impugned is indefensible. 13. The application, accordingly, succeeds in part. The learned Judge is directed to rehear the prayer of the defendant confined to points 1 and 3 of the application under Order XXXIX Rule 7 of the Code and to give his decision in accordance with law. Subject to his convenience, the learned Judge may endeavour to give his decision in terms of this order without granting unnecessary adjournments as early as possible, preferably within a month from date of receipt of a copy of this order. 14. Before parting, a word or two requires to be said in respect of local inspection conducted upon allowing the application under Order XXXIX Rule 7 of the Code filed by the plaintiff. The alleged clear picture regarding the extent of accommodation available to her, as observed by the learned Judge in the impugned order, could not have surfaced without collection of evidence at the stage of local inspection by thelearned advocate commissioner, which the learned Judge in the latter part of his order has rightly observed could not be directed to be collected. I am sure, while deciding the suit, the learned Judge would bear in mind that the report of the learned advocate commissioner calls for due scrutiny on the touchstone of legality bearing in mind the settled position of law on the subject referred to by the learned Judge in the impugned order and is not to be relied on without proper application of mind and good reasons for its acceptance. 15. The application stands disposed of with the above directions, without order as to costs.