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2015 DIGILAW 61 (CAL)

National Gens H. S. School v. Jagannath Dega

2015-01-28

TAPABRATA CHAKRABORTY

body2015
JUDGMENT : This is an application under Section 227 of the Constitution of India preferred by the defendant no. 3/petitioner herein challenging an order dated 12th of September, 2011 passed by Sri M.K. Prosad, learned 2nd Additional Civil Judge (Junior Division) at Alipore in Title Suit No. 32 of 2007. 2. Shorn of unnecessary details, the facts are that one Shri Jagannath Daga and one Shri Biswanth Daga preferred a suit for permanent injunction, inter alia, praying for a decree for permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit property. In connection with the said suit an application for temporary injunction was filed by the plaintiffs and the said application was heard along with an application for local inspection filed by the defendant no.3. Upon contested hearing, by an order dated 21st of January, 2001, the parties were directed to maintain status quo in respect of their possession till the disposal of the suit and the application under Order 39 Rule 7 was dismissed. The said order of dismissal of the application under Order 39, Rule 7 was not challenged. Subsequent thereto, trial commenced and at the stage of cross-examination of the plaintiffs’ witnesses, an application under Order 39, Rule 7 read with Section 151 of the Code of Civil Procedure was filed by the defendant no. 3, being the petitioner herein. The said application has been rejected by the order impugned in the instant revisional application. 3. Mr. S.P. Roy Chowdhury, learned Senior Advocate, assisted by Mr. Mukherjee, appears on behalf of the petitioner and submits that the initial application under Order 39, Rule 7 was dismissed erroneously by the learned Court below construing the dispute amongst the parties to be as regards title to the suit property though the dispute was pertaining to possession of the respective parties. However, he hastens to add that title to the property is an incidental issue involved in the suit. 4. According to him, the mere fact that the petitioner herein did not challenge the said order of refusal for local inspection, would not stand in the way of this Court from making an order in accordance with law. In support of such contention, he has placed reliance upon the judgment delivered in the case of Jatindra Nath Nandi & Ors. vs. Krishnadhan Nandi & Ors., reported in 56 CWN 1858. 5. In support of such contention, he has placed reliance upon the judgment delivered in the case of Jatindra Nath Nandi & Ors. vs. Krishnadhan Nandi & Ors., reported in 56 CWN 1858. 5. He further submits that an interlocutory order does not decide in any manner the merits of the controversy in issue in the suit and does not put an end to it even in part and that a scrutiny of the facts and the evidence tendered would reveal that the earlier order of refusal of inspection was passed on a particular set of facts and the second application for inspection was filed on the rudiments of new facts which had surfaced in the midst of cross-examination of the plaintiffs’ witnesses and that as such the earlier order of refusal of inspection would not operate as res judicata. In support of such contention reliance has been placed upon the judgment delivered in the case of Arjun Singh vs. Mohindra Kumar, reported in AIR 1964 SC 993 . 6. Mr. Roy Chowdhury further submits that in the event the prayer for local inspection is allowed, the opposite parties would not be prejudiced in any manner inasmuch as the report would clarify the fact situation which is presently existing, more so when the suit pertains to an issue of disputed possession of the parties. 7. In the midst of arguments, he further disputes that the earlier application for local inspection was filed by the defendant no. 3. 8. Per contra, Dr. Bandopadhyay, learned Advocate appearing for the opposite party no. 1 submits that the petitioner has totally suppressed the fact that on an earlier occasion, an application for local inspection was filed and that the same was rejected by the learned Court below by an order dated 21st January, 2001 and that such suppression of material fact warrants dismissal of the instant application. In support of such contention, he has placed reliance upon an unreported judgment delivered in the case of Ramjas Foundation and another vs. Union of India and others. 9. Drawing the attention of this Court to the averments made in the plaint and the written statement and the evidence of the plaintiffs’ witnesses, he submits that no new fact has surfaced necessitating further inspection. 10. 9. Drawing the attention of this Court to the averments made in the plaint and the written statement and the evidence of the plaintiffs’ witnesses, he submits that no new fact has surfaced necessitating further inspection. 10. He further submits that an interim order of status quo was passed by this Court way back in the year 2001 and since then, the present petitioner has never alleged any change in the fact situation, in consideration of which the interim order was passed and almost eleven years after dismissal of the first application for inspection, the second application for local inspection was filed. 11. According to him, the cross-examination of the plaintiffs’ witnesses does not bring to light any new fact and that the said application has been filed only with an intent to further delay the proceeding. Furthermore, as there has been no change in the fact situation, the earlier order of refusal of inspection operates as res judicata. In support of such contention reliance has been placed upon the judgment delivered in the case of Barkat Ali and Anr. vs. Badri Narain (D) reported in AIR 2008 S.C. 1272 . 12. According to him there is no patent perversity in the order impugned warranting interference in exercise of jurisdiction under Article 227 of the Constitution of India. In support of such contention, he has placed reliance upon an unreported judgment delivered in the case of Bal Gopal Maheshwari & Ors. vs. Sanjeev Kumar Gupta and the judgment delivered in the case of Gopal Ghosh & Ors. vs. George College of Management & Science, reported in 2012 (1) CLJ 103 . 13. I have heard the learned advocates appearing for the respective parties and I have considered the materials on record. 14. The points relating to inspection in the two applications are identical, save and except inclusion of a point in the latter application to the effect that “what is the distance of plaintiffs’ lubricant factory from the suit property ?”. The said new point which has been inserted does not have any nexus with the answers given by the plaintiffs’ witnesses in course of cross-examination and that no new fact has surfaced necessitating inspection. 15. The said new point which has been inserted does not have any nexus with the answers given by the plaintiffs’ witnesses in course of cross-examination and that no new fact has surfaced necessitating inspection. 15. The undisputed facts are that the earlier order of refusal of inspection passed on 21st of January, 2001 has not been averred in the second application for inspection and that the second application for inspection has been filed almost eleven years after dismissal of the first application for inspection and that no violation of the order of status quo, operating since 21st of January, 2001, has ever been alleged by the petitioner. 16. In the absence of proof of new facts and in the absence of any material to the effect that the suit property has been subjected to any alteration and/or deterioration, the learned Court below has rightly rejected the second application for inspection. 17. The order impugned in the instant revisional application has not been passed only on a consideration that the petitioner did not challenge the earlier order of refusal of inspection and that as such the judgments delivered in the case of Jatindra (Supra) and in the case of Arjun Singh (Supra), as relied upon by the petitioner, are distinguishable on facts and the same have no manner of application in the instant case. 18. It is well settled that supervisory jurisdiction under Article 227 of the Constitution of India is required to be exercised sparingly and that too only when there is a patent error. The observations made by the learned Court below do not suffer from any such patent error. 19. From the conspectus of facts, it is evident that parties have started adducing evidence and the inspection, if allowed at this stage on the points already noted, would be nothing but collection of evidence. The dispute regarding the conflicting claims of the parties relating to their possession of the suit property, is a matter to be decided on trial on evidence and that as such I do not find any reason to interfere with the order which has been assailed in the instant revisional application. 20. For the reasons as discussed above, no interference is called for and the instant revisional application is dismissed. 21. There shall, however, be no order as to costs. 20. For the reasons as discussed above, no interference is called for and the instant revisional application is dismissed. 21. There shall, however, be no order as to costs. Urgent certified photocopy of this order, if applied for, be supplied as expeditiously as possible.