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2014 DIGILAW 896 (ORI)

Pramod Chandra Senapati v. Sanatan Jena

2014-12-23

BISWANATH RATH

body2014
JUDGMENT : Biswanath Rath,J Petitioner filed this Civil Miscellaneous Petition assailing the order dated 15.3.2014 passed by the learned Civil Judge (Senior Division), Baleswar thereby rejecting the application at the instance of the plaintiff-petitioner under Order 39, Rule 7 of the Code of Civil Procedure, 1907. 2. The brief fact of the case is that the petitioner as plaintiff filed a suit for declaration of right, title and interest over the suit schedule land, correction of Record-of-Right and also for permanent injunction. The plaintiff’s case in the suit is that he is one of the sons out of five sons of his late father. One of the brothers of the petitioner, namely, Pradip had earlier filed O.S.No.111 of 1972-I for partition of their entire ancestral joint family properties impleading their father as one of the defendant. . The present petitioner was impleaded as defendant no.3 in the said suit. The said suit was decreed in terms of compromise on 12.2.1975. The petitioner therefore, submitted that the entire ancestral property has been partitioned in meets and bounds by allotting Ac.2.11 decimals of land as described in the plaint involved in the suit as ‘Ga’ schedule land. All the co-sharers have been given 1/4th equal share in ‘Ga’ schedule land i.e. Ac.2.11 decimals of land in favour of each. The petitioner alleged that even though he is in possession of his allotting share, but in the final settlement Record-of-Right, the area wrongly reflected as Ac.1.58 decimals in stead of Ac.2.11 decimals of land. It is in this view of the matter, the petitioner was constrained to file the suit involved in this writ petition. In the suit, the petitioner had also filed an application for injunction with a prayer to restrain the defendants thereby not disturb with the possession of the plaintiff. The trial court after hearing the parties and going through the records granted an order of status quo. It is alleged that while the matter stood thus, during current cyclone, namely, “Phylin” 30 numbers of Saguan trees and other trees got uprooted involving the suit property. Subsequently, the petitioner filed an application under Order 39, Rule 7 of the Code of Civil Procedure with a prayer to appoint a Commissioner for investigation and preservation of all trees. 3. It is alleged that while the matter stood thus, during current cyclone, namely, “Phylin” 30 numbers of Saguan trees and other trees got uprooted involving the suit property. Subsequently, the petitioner filed an application under Order 39, Rule 7 of the Code of Civil Procedure with a prayer to appoint a Commissioner for investigation and preservation of all trees. 3. Upon notice, application under Order 39, Rule 7 of the Code of Civil Procedure, defendant nos.1 to 3 filed a common objection making averment therein that since the suit has been posted for hearing , there is no necessity to appoint a Commissioner alleging further that the petitioner has already taken away the trees and the petitioner has filed this application with an intention to delay the proceeding. The defendants-opposite parties further submitted that there is no Teak trees on the described plot when the suit is pending for disposal and such application having been filed after the plaintiff already filed his deposition under Order 18, Rule 4 of the Code of Civil Procedure, which includes reference of the documents as exhibits. The petition of the petitioner was rejected on the ground that the hearing already commenced, there is no necessity for appointment of Commissioner. Further, when there is dispute regarding boundary and dispute concerning right, title and interest, this is no time to depute a Commissioner, which will ultimately disturb the trial in the proceeding. On the above premises, the defendant-opposite parties submitted that rejection of the application under Order 39, Rule 7 of the Code of Civil Procedure. 4. The matter was heard by the trial court and by order dated 15.3.2014 the trial court rejected the aforesaid application on the premises that such application has been filed when the suit was posted for settlement of issues. Further, on the premises that law is well settled that the order of inspection is not to be provided for collecting evidence for the parties and such investigation is necessary only when the parties are incapable of having knowledge or inspection in view of nature of the suit. Further, since the land in question is open and witnesses are available, there is no need for appointment of a Commissioner at this stage, as it is otherwise amount to collection of evidence. 5. Heard the parties. Further, since the land in question is open and witnesses are available, there is no need for appointment of a Commissioner at this stage, as it is otherwise amount to collection of evidence. 5. Heard the parties. Rejecting the application under Order 39, Rule 7 of the Code of Civil Procedure vide Annexure-3, as stated in paragraph-2 of the application discloses the fact of claiming of certain number of Saguan/Teak trees and one Kaim tree are uprooted due to Phylin in the locality and fallen over the plaintiff’s allotted ‘Ga’ schedule property and taking advantage of the Record-of-Right as well as status quo order of the Court, the defendants are trying to create disturbance in relation to the possession of the plaintiff as well as the properties and it is, on this premises, the plaintiff intended protection of the trees fallen over the disputed property. But for the interest of the parties involved in the suit as appears, the application of the plaintiff-petitioner is for the preservation of the trees fallen over the disputed land for which he has desired for deputing a commissioner for inspection and preservation of trees over the situated plot “Ga’ schedule land of the plaintiff. At this stage, it is necessary to refer the provision contained in Order 39, Rule 7 of the Code of Civil Procedure. “Rule 7. Detention, preservation, inspection, etc., of subject matter of suit.-(1) The court may, on the application of any party to a suit and on such terms as it thinks fit,— (a) make an Order for the detention, preservation or inspection of any property which is the subject matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and (C) for all or any of the purposes aforesaid authorise any samples to be taker, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. (2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule.” 6. (2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule.” 6. During pendency of the Civil Proceeding, the plaintiff-petitioner filed an application under Order 39 Rule-7 of the Code of Civil Procedure, inter alia, containing therein that during the last cyclone, namely, Phylin and heavy rain during the month of October, 2013, thirty numbers of Saguan trees and one Kaim tree worth Rs.2,00,000/-(rupees two lakhs) fell on the suit plot claiming that the trees have fallen over the plaintiff’s allotted ‘Ga’ scheduled property with an interest to identify and protect the property. He filed the Misc. Case under Order 39 Rule-7 of the Code of Civil Procedure praying therein the following prayer:- “Hence, for ends of justice, your Honour may be pleased enough to pass necessary order for appointing a Commissioner for inspection and preservation of the trees situated over the ‘Ka’ Schedule land of the plaintiff and for these act of your Hon’s kindness, the plaintiff remain ever pray” 7. The opposite party-defendants filed an objection seriously objecting to the application of the plaintiff-petitioner on the ground that the petitioner is trying to collect evidence in the suit. Since, the trial has to commence and pending at this stage of filing of deposition of the plaintiff Order 18 Rule 4 of the Code of Civil Procedure. There is an attempt of the plaintiff to delay the suit. It is in this context, it is now to be seen the provision made under Order 39 Rule 7of the Code of Civil Procedure. Bare reading of the Order 39 Rule 7 of the Code of Civil Procedure makes a contingency for detention, preservation, inspection etc. of the subject matter of the suit. Order 39 Rule 7(a) even though provides a provision for making an order for detention, preservation or inspection of any property which is the subject matter of the suit, or as to which any question may arise therein. Therefore, there is a clear intention of the legislation and this provision applies in respect of any property which is the subject matter of such suit or as to which any question may arise therein. Therefore, there is a clear intention of the legislation and this provision applies in respect of any property which is the subject matter of such suit or as to which any question may arise therein. The petitioner’s suit is understood of declaration of right, title and interest in connection with the particular property and that property since having the varieties of trees, here is no doubt that in the present contingency has brought in the Misc. Case right over such trees will undoubtedly be a question arise in the suit property. But looking to the provision under Order 39 Rule 7(b), it authorises detention, preservation, inspection etc. and thereby authorising any person to enter upon or into any land or building in the possession of any other party to the said suit. In the suit at hand, when the petitioner claims right over the whole property but the defendants by way of written statement claimed right over the property beyond property mentioned in the record-of-right in favour of the petitioner. The written statement at the instance of the defendants make clear statement that the defendants are in possession of the property beyond the property indicated in the record-of-right and thereby they dispute the right of petitioner over the balance property. Therefore, from written statement it is clear that the opposite party, i.e., defendants are in possession of the property over which the trees have been uprooted. Therefore, the properties since prima facie appears to be in the custody of the opposite parties, this Court do not find any illegality or infirmity in plaintiff-petitioner making an application under Order 39 Rule 7 of the Code of Civil Procedure and this Court hold the trial court failed to appreciate this aspect in matter. In deciding similarly disputes particularly deciding the question whether any such contingency, an application under Order 39 Rule 7 of the Code of Civil Procedure is maintainable or not. This Court in the case of Amiya Bhusan Tripathy vrs. In deciding similarly disputes particularly deciding the question whether any such contingency, an application under Order 39 Rule 7 of the Code of Civil Procedure is maintainable or not. This Court in the case of Amiya Bhusan Tripathy vrs. Ahmmad Ali, 1986 (II) OLR-330, held that application under Order 39 Rule 7 of the Code of Civil Procedure is very much entertainable and in deciding so this Court further held that the report obtained or the materials obtained in the process cannot be treated as evidence under Order 26 of the Code of Civil Procedure and inspection and inquiry in such matters are for limited purpose and are required to be considered to the extent of injunction only. Similarly, in another case of similar nature this Court in a decision reported in case of 1991(II) OLR 14 has come to hold the report of inspection in terms of Order 39 Rule 7 is not evidence unless otherwise proved and this Court also further held that there is a basic distinctive feature in the report collected under Order 39 Rule 7 of the Code of Civil Procedure vis-à-vis a report of a Commissioner appointed under Order 26 Rule 9 of the Code of Civil Procedure. In deciding so this Court in the aforesaid referred case while disapproving the rejection of the application under Order 39 Rule 7 of the Code of Civil Procedure directed the learned trial court to consider the matter afresh. I make it clear that the observation made in this revision are only for the purpose of Order 39 Rule 7 cannot be utilised in the ultimate decision in the suit. 8. Under the aforesaid facts, circumstances and in the settled position of law while rejecting the objection of the petitioner that such a contingency under the provisions contained in Order 39 Rule 7 of the Code of Civil Procedure cannot be misutilised to help the plaintiff to collect materials in evidence, I disapprove the impugned order dated 15.03.2014 passed in C.S. No.315 of 2008 by the Civil Judge (Sr. Division), Balasore consequently while setting aside the order, this Court allows the application under Order 39 Rule 7 of the Code of the Civil Procedure with direction that any report to be obtained in the process will be treated for the limited purpose of injunction and cannot be treated as piece of evidence under Order 26 Rule 10 of the Code of Civil Procedure. The Civil Miscellaneous Petition is accordingly allowed. However, there shall be no order as to cost.