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2012 DIGILAW 526 (ORI)

Abdul Naim Khan v. Sk. Kefaittullah

2012-12-03

B.K.MISRA

body2012
JUDGMENT B.K. MISRA, J. : The opposite party Nos.1 to 4 of this writ petition as plaintiffs instituted Civil Suit No.139 of 2011 in the Court of learned Civil Judge (Jr.Divn.), Jagatsinghpur for permanent injunction, restraining the defendants along with their family members, relatives, agents etc. from evicting the plaintiffs from the shop rooms and from creating any disturbances or hindrances in their regular business. The said suit was filed on 16.8.2011. Besides that the plaintiff also prayed for ad interim order of injunction which was registered as Interim Application No.153 of 2011. In the said suit the plaintiffs also filed another petition under Order 39, Rule 7 of the Civil Procedure Code read with Section 151 of the Civil Procedure Code (hereinafter referred to as “C.P.C.”) praying the Court for appointment of Pleader Commissioner to answer the points as indicated in the schedule appended to the said petition. The defendants of the suit, namely the present petitioners filed their objection to the prayer of the plaintiffs for appointment of Pleader Commissioner. Learned Civil Judge (Jr.Divn.), Jagatsinghpur after hearing the parties disallowed the prayer of the plaintiffs for deputing a Pleader Commissioner by the impugned order at Annexure-5. Being aggrieved by the said order at Annexure-5 the present petitioners have approached this Court for quashing of the same with an alternate prayer for a direction to the learned Civil Judge (Jr.Divn.), Jagatsinghpur for considering the prayer for deputing a Pleader Commissioner afresh. 2.The opposite parties entered appearance and filed their counter affidavit wherein they averred that the impugned order has been passed by the learned Court below on due application of judicial mind and conscience and when the learned Court below refused to exercise the judicial discretion and when the order in question is a speaking order, the same should not be disturbed because of the simple reason that the Court is not to exercise such powers lightly on mere asking for the same. Accordingly, it is prayed for dismissal of the writ petition. 3.I have heard learned counsel appearing for the respective parties and perused the materials placed for adjudicating the matter including copy of the plaint. Accordingly, it is prayed for dismissal of the writ petition. 3.I have heard learned counsel appearing for the respective parties and perused the materials placed for adjudicating the matter including copy of the plaint. The Plaintiffs in C.S. No.139 of 2011 who are the present opposite parties in this writ petition claimed to be in occupation of shop rooms where they claim of running their business having been entered into an agreement with one Usman Khan, namely the defendant No.8 who is the owner of the shop rooms having 50% interest over the suit property. But when dissention arose in between the defendant No.8 and defendant Nos.1 to 7 (which also includes the present two petitioners of this writ petition) regarding the ownership of the shop rooms over the suit property in question, attempt was made by the present petitioners as well as the other defendants to evict the opposite parties from the alleged shop rooms, the suit was filed for permanent injunction. In that suit prayer was also made for ad interim temporary injunction. Besides that the plaintiff also filed an application for local inspection with regard to the possession of the shop rooms in question by the opposite parties as according to the petitioners the opposite parties are not in possession of the shop rooms as they have already vacated the same and therefore to facilitate the Court in arriving at the true and just decision, the prayer was made for local inspection of the suit property. 4.Under Order 39, Rule 7 of the C.P.C. the Court undoubtedly has discretion to make an order for inspection of the property in dispute. There can be no doubt that such discretion is to be judicially exercised depending upon the facts and circumstances of each case when occasion demands that inspection is necessary for proper appreciation and adjudication of the dispute, local inspection may be necessary. There can be no doubt that such discretion is to be judicially exercised depending upon the facts and circumstances of each case when occasion demands that inspection is necessary for proper appreciation and adjudication of the dispute, local inspection may be necessary. It is also the established position of law that report of the local inspection under Order 39, Rule 7 of the C.P.C. is not evidence Under Order 26, Rule 10 of the C.P.C., as each party has to prove the necessary facts and circumstances (Krushna Behera v. Gitarani Nandy, 1990(I) OLR 247), (Subal Kumar Dey v. Purna Chandra Giri and others, 1989 (I) OLR 398), Savitri Devi and others v. Prasanna Kumari Devi @ Devi @ Dibya @ Pramodini (dead) and others, 1992 (II) OLR 14. 5.As I find from Annexure-3, the application filed under Order 39, Rule 7 of the Civil Procedure Code read with Section 151 of the C.P.C., the prayer was made for appointment of Pleader Commissioner to report as to whether any hotel is running in the rooms occupied by the present opposite party No.2 over the suit plot No.336 along with existence of optical show room and auto-spare parts shop of opposite party No.3 and Sk. Hedayat Ullah and to indicate them in a rough sketch map regarding location and situation of the suit shop rooms. 6.Learned trial Court disallowed such a prayer on the ground that those facts can be proved by leading evidence and therefore deputation of Commissioner would amount to collection of evidence especially when hearing of the suit has not yet commenced. It is the trite law that the object of inspection is to give clear topography and the situation of the suit plot. In my humble view, assistance of the Court would be necessary where the party requiring such assistance is incapable of having the knowledge and cannot render evidence on the point. Furthermore, the Court has wide discretion in deputing advocate commissioner when it finds that in view of the evidence laid by both sides of the report of the local inspection would assist the Court in assessing the evidence properly. Furthermore, the Court has wide discretion in deputing advocate commissioner when it finds that in view of the evidence laid by both sides of the report of the local inspection would assist the Court in assessing the evidence properly. Thus, when hearing of the suit has not yet commenced and when witnesses would be available to the plaintiffs to prove their assertions, the trial Court is justified in arriving at a conclusion that direction for local inspection would amount to fishing out materials for the plaintiff. I do not find anything wrong in the approach of the learned trial Court. When there is no failure of justice, in the instant case, by passing the impugned order in question and when there is nothing on record to show that the learned trial Court exceeded its jurisdiction and passed the impugned order in flagrant dis-regard of law or the rules of procedure or acting in violation of the principles of natural justice, the Writ Court would refuse to exercise the certiorari jurisdiction as such powers are to be used sparingly. 7.In the result, there being no merit in this writ petition, the same stands dismissed, but without any cost. 8.I may make it clear that if in course of recording of evidence the learned Civil Judge (Jr. Divn.), Jagatsinghpur would be satisfied that local inspection of the suit property would be necessary to arrive at the just decision of the case he may issue the direction on the application of either party. Further, it is directed that the trial Court shall do well to take up he hearing of the main suit i.e. Civil Suit No.139 of 2011 if pleadings are complete in all respect and the same shall be disposed of as expeditiously as possible, preferably, within a period of six months. Petition dismissed.