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2012 DIGILAW 645 (CAL)

Noor Saba v. Tapasi Das

2012-07-17

PRASENJIT MANDAL

body2012
Judgment PRASENJIT MANDAL, J. 1. CHALLENGE is to a portion of the Order dated January 28, 2008 passed by the learned Civil Judge (Junior Division), 2nd Court, Sealdah in Title Suit No.395 of 2006 thereby rejecting the prayer for local inspection on contest filed by the plaintiff/petitioner herein. 2. THE plaintiff instituted a suit being Title Suit No.395 of 2006 for permanent injunction to the following effect:- (a) for a decree of permanent injunction restraining the defendant no.1 and her men, agent and servants from breaking padlock and key of the suit Flats, and/or ousting and/or dispossessing of the plaintiffs forcibly from the suit flats and also restraining them from creating any sort of obstruction in any manner whatsoever in ingress and egress to the suit property and also restraining them not to disturbing and/or interfering in any manner whatsoever of the plaintiffs in the suit property. 3. THE plaintiff has filed the suit contending, inter alia, that by an agreement dated February 6, 2006, the plaintiff agreed to pay rent month by month to the defendant No.2 against proper rent receipts and has been enjoying the tenancy on payment of necessary charges. In that suit, the plaintiff filed an application for local inspection on the following points:- Schedule 3rd (a) To go to the locale at floor of B/6/1B/H/1, Rameswar Shaw Road, P.S. Beniapukur, Kolkata ? (b) To note the articles lying in the flats i.e. at the suit flats. (c) To note the condition of the suit flats. (d) To note whether there are any electricity in the suit flats. (e) To note the measurement of the suit flats. (f) To draw a sketch map showing the situation, position and condition of the suit flats. (g) To note the local features if any pointed by the plaintiffs. 4. THE written objection was filed by the defendants against the said application and upon hearing both the sides, the learned Trial Judge rejected the prayer for local inspection. Being aggrieved, this application has been preferred by the plaintiff. Now, the question is whether the impugned order should be sustained. 5. UPON hearing the learned Advocates for the parties and on going through the materials-on-record, I find that the plaintiff has sought for local inspection in support of their plaint case and also for the purpose of getting materials for the disposal of the application for temporary injunction. 6. Now, the question is whether the impugned order should be sustained. 5. UPON hearing the learned Advocates for the parties and on going through the materials-on-record, I find that the plaintiff has sought for local inspection in support of their plaint case and also for the purpose of getting materials for the disposal of the application for temporary injunction. 6. IT is pertinent to mention that the application for temporary injunction and also the modification of the ad interim order as granted earlier were also disposed of by the same order. Therefore, so far the orders for collection of materials for the purpose of disposal of the application for temporary injunction are concerned, I am of the view that this purpose has lost its relevancy. 7. SO far as the plaint case is concerned, from the copy of the plaint as stated above, the plaintiff has asserted that he is in enjoyment of the suit premises as described in the schedule of the plaint and he has been paying rents for the premises regularly. Since he has contended his assertion of possession in definite words, question of inspection on the points noted as above for the main suit, I hold, is not at all necessary. 8. WHILE dealing with the application for local inspection, the learned Trial Judge has recorded reasons that as regards possession in respect of a property can be proved by documents. A local inspection cannot serve the purpose. Moreover, the points mentioned in the application will hardly enable the learned Trial Judge to find out who is in possession of the suit flat. It is also pertinent to mention that suit flats consist of two self- contained flats more or less situated on the entire third floor of the premises No.B/6/1B/H/1 Rameswar Shaw Road, Kolkata-700014. Therefore, the identity of the property is not at all in dispute and the suit premises could be easily identified. 9. MR. Aniruddha Chatterjee, learned Advocate appearing for the petitioner, has drawn my attention to the reasoning recorded by the learned Trial Jude as stated in support of the order of rejection of the prayer for local inspection. He has contended that since a dispute has cropped up except inspection, there is no other way in which the plaintiff would be able to prove the possession. Accordingly, the learned Trial Judge should have allowed the application for local inspection. 10. He has contended that since a dispute has cropped up except inspection, there is no other way in which the plaintiff would be able to prove the possession. Accordingly, the learned Trial Judge should have allowed the application for local inspection. 10. ON the other hand, Mr. J.R. Chatterjee, learned Senior Advocate appearing for the opposite party, has contended that collection of evidence by way of inspection to determine possession of the suit premises by the parties is not permissible and as such, the learned Trial Judge has rightly rejected the prayer for local inspection. 11. HAVING considered the rival submissions of the learned Advocates of both the sides and the materials-on-record as discussed above, I am of the view that for the purpose of considering the relief as made for in the plaint, the proposed inspection is not, at all, necessary. So far as Point No.(a) of the inspection is concerned - it is nothing but to go to the locale of the premises in suit. Point No.(b)- is to note the articles lying in the flats. Point No.(c)- is with regard to condition of the suit flats. Point No.(d)- is with regard to test whether there is any electricity in the flats. Point No.(e)- to note measurement of suit flats. Point No.(f)- preparation of a sketch map showing situation, position and condition of the suit flats and Point No.(g)- is with regard to local features, if any, pointed out by the plaintiffs. 12. SO, for the purpose of disposal of the suit, I am of the view that inspection on those points is not, at all, necessary and as noted above, the identification of the property is not at all in dispute because the two flats are situated on the third floor of the premises referred to earlier. Accordingly, I am of the view that the learned Trial Judge has passed the orders on the application for local inspection within the bounds of its authority and there is no illegality or material irregularity in the impugned order. This application is, therefore, devoid of merits. Accordingly, the application is dismissed. 13. CONSIDERING the circumstances, there will be no order as to costs. 14. URGENT xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.