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2021 DIGILAW 486 (CAL)

Krishna Trading Company v. N. Guruswamy

2021-12-20

JAY SENGUPTA

body2021
JUDGMENT : JAY SENGUPTA, J. 1. This is a revisional application challenging the order dated 29.09.2021 passed in Other Suit No. 21 of 2003 renumbered as Other Suit No. 12 off 2012 (M/s Krishna Trading Company – Vs – Shri. N.Guruswamy and another) by the learned Joint Civil Judge (Senior Division) at Port Blair, thereby allowing the application for appointment of Commissioner filed by the opposite parties/defendants under Order 39 Rule 7 of the Code of Civil Procedure. 2. The petitioner/plaintiff filed a suit bearing Other Suit No. 21 of 2003 against the opposite parties/defendants for eviction. The defendants filed their written statement in the suit. During pendency of the suit, the opposite parties/defendants filed the application under Order 39 Rule 7 of the Code of Civil Procedure, 1908 in the suit along with the application under Sections 25 and 29 of the Andaman and Nicobar Rent Control Regulation, 1964 seeking repair of premises. The petitioner filed a written objection and specifically contended that a report should be called from the APWD and the PBMC to ascertain the condition of the premises in question i.e., whether the same is repairable or not. 3. Mr. N.A.Khan, learned counsel appearing on behalf of the petitioner, submitted as follows. Learned Trial Court erred in appointing the Advocate Commissioner to hold local inspection in terms of Order 39 Rule 7 of the Code of Civil Procedure instead of appointing an expert to submit its opinion regarding the condition of building in question. Instead of such provision, learned Trial Court ought to have invoked the provision of Order 26 Rule 9 and appointed an expert like an Engineer from the APWD or the PBMC to ascertain the present condition of the building. An Advocate Commissioner did not have expertise in the field and could not opine anything about the structural stability of the building. Besides, the points for inspection clearly exceeded the scope of Order 39 Rule 7 of the Code of Civil Procedure. In fact, this was partly admitted by the learned Trial Judge. 4. Mr. Arul Prasanth, learned counsel appearing on behalf of the opposite parties, submitted as follows. First, there was a clear suppression of material facts. Despite earlier orders, the petitioner did not file a supplementary affidavit to bring on record the photographs of the demolished roof. The photographs were supplied to the petitioner alongwith the application. 4. Mr. Arul Prasanth, learned counsel appearing on behalf of the opposite parties, submitted as follows. First, there was a clear suppression of material facts. Despite earlier orders, the petitioner did not file a supplementary affidavit to bring on record the photographs of the demolished roof. The photographs were supplied to the petitioner alongwith the application. By taking advantage of the prevalent COVID 19 pandemic, the petitioner had the roof of the building illegally demolished. As regards the merits of this application, Order 39 Rule 7 of the Code of Civil Procedure is the provision that was most often invoked in having local inspection done so that the premises in question could be repaired. There was no need for an expert’s opinion to ascertain the condition of the building in regarding the demolition of its roof. Accordingly, the learned Trial Court rightly appointed the Commissioner for holding local inspection in respect of the points as formulated in the said order. The petitioner could not be allowed to commit more damage to the suit premises with the sole pursuit of evicting the defendants. 5. In reply, learned counsel for the petitioner submitted that although a copy of the application was served upon his client, no copy of photographs was served upon it. 6. I heard learned counsels appearing for the parties and perused the application, the orders passed by learned Trial Judge and the Lower Court Records. 7. Order 39 Rule 7 of the Code of Civil Procedure may be quoted as under:- “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 taken, 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.” 8. This provision is very often invoked by a party to a suit seeking preservation or inspection of any property, which is the subject matter of such suit. 9. It appears that the learned Judge, after hearing the parties, recorded that the defendants being tenant running a shop in the ground floor alleged that it required repairs to be made to make it habitable. As the learned Trial Court felt that the points for local inspection, to some extent, exceeded the scope of Order 39 Rule 7 of the Code of Civil Procedure, it modified the points for local inspection and ordered a learned Advocate to be appointed as a Commissioner for holding local inspection. The points in respect of which such inspection was allowed are as under:- “1. Is there any photo studio shop in the ground floor of the suit building? 2. Is there any sign that the roof of the first floor of the suit building has been removed recently? 3. Is there any remnants dumped on the slab of the ground floor of the suit building? 4. Is there any sign of stagnant of rain water on the slab of the ground floor of the suit building? 5. Is there any sign of seeping of rain water into the shop of the defendant? 6. Any other local features that may be pointed out by the parties at the time of local inspection?” 10. It does not appear that for making a local inspection as regards the above points, an expert’s engagement is required. 11. This Court also does not find that any of the points mentioned above could be termed as beyond the scope of Order 39 Rule 7 of the Code of Civil Procedure. 12. The learned Trial Judge has passed a reasoned order and this Court finds no worthwhile reason to interfere with the same. 13. Accordingly, the application is dismissed. 14. However, there shall be no order as to costs. 15. Let the lower court records be sent down the learned Trial Court forthwith. 16. Urgent photostat certified copy of this judgement, if applied for, be supplied to the parties upon compliance of usual necessary formalities.