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Nitindra Nath Roy Chowdhury and ors. Vs. Subhas Ch. Kar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2229 of 1980
Judge
Reported inAIR1981Cal319,85CWN915
ActsCode of Civil Procedure (CPC) , 1908 - Order 26, Rule 9 - Order 39, Rules 7, 7(1), 8 and 8(1)
AppellantNitindra Nath Roy Chowdhury and ors.
RespondentSubhas Ch. Kar
Appellant AdvocateA.K. Motilal and ;Ajit Chakraborty, Advs.
Respondent AdvocateSudhis Das Gupta and ;Ashis Bagchi, Advs.
Cases ReferredAmjad Ali v. Ali Hossain
Excerpt:
- .....court is not empowered under the provisions of order 39, rule 7 of the code of civil procedure to issue a commission for inspection for the purpose of collecting evidence. the cases of padam sen v. state ofu. p. in 0065/1960 : 1961crilj322 and of institution of engineers v. bishnupada in : air1978cal296 have been cited. it has been contended that the issues were not settled at that stage of the suit. the issue of the commission was thus a premature one. reference has been made to rule 9 of order 26 of the code. it has been contended that after the issues are settled, if the court thinks fit, a commission for local investigation could be issued. since an illegal order was passed, it must be set aside and the revisional application is maintainable.3. it has been argued on behalf of the.....
Judgment:
ORDER

B.N. Maitra, J.

1. The plaintiff opposite party instituted a suit for ejectment. Before the defendants' appearance, he filed an application for inspection of the disputed premises and also of premises No. 17/1, Lansdowne Terrace, Calcutta. The prayer was allowed by the learned Munsif. Hence this revisional application by the petitioners-defendants.

2. The learned Advocate appearing on behalf of the petitioners has contended that the Court is not empowered under the provisions of Order 39, Rule 7 of the Code of Civil Procedure to issue a commission for inspection for the purpose of collecting evidence. The cases of Padam Sen v. State ofU. P. in 0065/1960 : 1961CriLJ322 and of Institution of Engineers v. Bishnupada in : AIR1978Cal296 have been cited. It has been contended that the issues were not settled at that stage of the suit. The issue of the commission was thus a premature one. Reference has been made to Rule 9 of Order 26 of the Code. It has been contended that after the issues are settled, if the Court thinks fit, a commission for local investigation could be issued. Since an illegal order was passed, it must be set aside and the revisional application is maintainable.

3. It has been argued on behalf of the plaintiff-opposite party that in the case of Nepal v. Mrinal in : AIR1980Cal184 , it has been stated that where the suit is for declaration, that the disputed premises belonged to partnership firm and for accounts and injunction, an ex parte order under Order 39, Rule 7 of the Code for inventory and custody of account books was passed. It was held by the High Court ihat such order was not invalid because the suit was filed for injunction restraining the defendants from removing the account books. The case of Amjad Ali v. Ali Hossain in 11910) 12 Cal LJ 519 at pages 522 and 523 has been cited to show that the right to grant an inspection implies a right to make an inventory if the Court is satisfied that the preparation of the inventory is essential for a proper decision ot the Court. Hence the Court has jurisdiction to make an order for preparation of such inventory under the provisions of Order 39, Rule 7 of the Code. The Court is competent to compel the proprietor to permit inspections as indispensable for administering the justice of the case. Such inspection is not an invasion of his rights, but a legal consequence of the obligation affecting the property and the proprietor. Moreover, in view of the amended provisions of Section 115 of the Code, the revisional application is not maintainable.

4. The learned Advocate appearing on behalf of the petitioners has also pointed out that the suit is for eviction of the defendant-petitioners from the disputed premises No. 3, Sardar Sankar Road, Calcutta, whereas in the para 5 (f) of the plaintiff's petition for inspection, a prayer has been made to note the number of rooms in the plaintiff's occupation at premises No. 17/1, Lansdowne Terrace, Calcutta, and also at premises No. 3, Sardar Sankar Road, Calcutta, and to take the measurement and mode of user of those rooms. It has thus been contended that a jurisdictional error has been committed.

5. When the condition of the structures is at issue, or may be at issue, a commission for local investigation cannot be issued under Order 26, Rule 9 of the Code and the proper procedure is to apply the provisions of Order 39, Rule 7 of the Code. This principle has been laid down by Manmatha Nath Mukherji, J., in the case reported in (1933) 37 Cal WN 143 : (AIR 1933 Cal 475). Moreover, the provisions of Rr. 7 and 8 of Order 39 of the Code are clear on the point. Rule 7 (1) says that the Court may make an order for inspection of any property which is the subject matter of such suit or as to which any question may arise therein. This rule has to be read with Rule 8 (1) thereof, for that rule says that an application by the plaintiff for an order under Rule 7 may be made at any time after the institution of the suit. Hence the Court is authorised to issue a commission for inspection at any stage of the suit and even after the plaint is filed. So the objection raised on behalf of the petitioners that the prayer for commission is premature is without any substance. Moreover, in view of the provisions of Section 13(1)(ff) of the Best Bengal Premises Tenancy Act read with Rule 7 (1) (a), the other points raised in the application for commission may arise in the suit for determination, though no written statement is filed. Hence an inspection is called for, and I find accordingly.

6. Nevertheless there is considerable substance in the argument advanced on behalf of the petitioners that some jurisdictional error was made by the learned Munsif to issue a commission at such early stage of the suit to note the number of rooms in the plaintiff's occupation at premises No. 17/1, Lansdowne Terrace, Calcutta, also to take measurement thereof and to note the mode of user thereof. That premises does not form the subject matter in dispute and hence at that very early stage of the suit the learned Munsif made a jurisdictional error in allowing that prayer made out in the petition for inspection. Hence only that portion will be deleted. Subject to that modification, the order for inspection issued by the learned Munsif will stand.

7. The Rule is, therefore, made absolute in part and the order modified in the manner, indicated previously.

8. There will be no order as to costs.


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