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Amjad Ali Vs. Ali HussaIn Johar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in6Ind.Cas.574
AppellantAmjad Ali
RespondentAli HussaIn Johar and ors.
Cases ReferredGobinda Mohan v. Kunja Behary Das
Excerpt:
civil procedure code (act v of 1908), section 115, order xxxix, rule 7 - inspection of disputed property--inventory, preparation of--court's power to direct taking of inventory--high court's power of revision--interlocutory order. - .....to restrain the defendants from removing the structures or any portion of the machinery on the premises. the defendants filed their written statement on the 31st of march 1910 ; meanwhile on the 11th march, the plaintiff had applied to the court below for inspection of the premises and for an inventory of the structures, fixtures and movables thereon. in this application it was alleged that the defendants had already removed some of the movables, and were about to remove portions of the machinery and to demolish parts of the structures. the defendants, in answer to this application, admitted that some of the movables had been removed, but they contended that they were entitled to act as they had done, and that the claim of the plaintiff thereto was wholly unfounded. they further.....
Judgment:

1. We are invited in this Rule to set aside an order by which the Court below has dismissed an application by the petitioner under Order XXXIX, Rule 7, of the Civil Procedure Code of 1908, for inspection of the disputed property, and for the preparation of an inventory of the structures, fixtures and movables on the premises. The circumstances, under which the application was made, are not open to dispute. On the 18th February 1910, the plaintiff commenced an action for ejectment of the defendants. . His allegation was that by a lease granted on the 31st December 1906, the disputed premises were let out to the first and second defendants for a term of three years with a covenant neither to assign the lease nor sub-let the premises; that in contravention of this covenant, they transferred the lease-hold interest to the third defendant, and that although the term of the tenancy has expired, the defendants have neither obtained a renewal of the lease, nor vacated the premises. He further alleged that in the events which have happened, he was entitled to a decree for ejectment against the defendants as trespassers, and was entitled to possession of the premises with all the structures, fixtures and movables thereon. He further prayed for an injunction to restrain the defendants from removing the structures or any portion of the machinery on the premises. The defendants filed their written statement on the 31st of March 1910 ; meanwhile on the 11th March, the plaintiff had applied to the Court below for inspection of the premises and for an inventory of the structures, fixtures and movables thereon. In this application it was alleged that the defendants had already removed some of the movables, and were about to remove portions of the machinery and to demolish parts of the structures. The defendants, in answer to this application, admitted that some of the movables had been removed, but they contended that they were entitled to act as they had done, and that the claim of the plaintiff thereto was wholly unfounded. They further admitted that removal of the portions of the machinery for purposes of repairs and for other like reasons might be necessary and they suggested that the preparation of inventory would mean interference with their business as a Cigarette Manufacturing Company. The Subordinate Judge took the matter into consideration on the 29th March and dismissed the application of the plaintiff. He discussed the relative positions of the parties; and mainly on the presumption that the plaintiff as a man of ordinary prudence might be assumed to have kept an inventory of all structures, fixtures and movables on the premises at the time the lease was granted, refused the application. We are now invited by the plaintiff to discharge this order, and to give direction for the inspection of the premises, and for the preparation of an inventory. In support of the Rule, it is pointed out that, if an inventory is not prepared at this stage, in the event of the ultimate success of the plaintiff, serious difficulties may arise, and a protracted enquiry, mainly upon oral evidence, may be rendered necessary with a view to determine what structures, fixtures and movables were on the premises at the time of the determination of the lease, possession whereof is claimed by the plaintiff under the contract. On behalf of the defendants, on the other hand, we are invited to discharge the Rule on two grounds, namely, first, that the order which the plaintiff seeks cannot be made under Order XXXIX, Rule 7, of the Civil Procedure Code of 1908, and secondly, that this Court ought not to interfere with an interlocutory order made by the Court below in the exercise of its judicial discretion.

2. In so far as the first of these objections is concerned, there is, in oar opinion, no foundation for it. Under Order XXXIX, Rule 7,--we quote only so much of the rule as is applicable to the case before us--the Court may, on the application of any party to a suit and on such terms as it thinks fit, make an order for the inspection of any property which is the subject-matter of such a suit or as to which any question may arise therein. The Court may also, for such purpose, authorise entry upon or into any land or building in the possession of any other party to the suit, and may, further, authorise any observation to be made which may seem necessary or expedient for the purpose of obtaining (sic) information or evidence. It has been suggested on behalf of the defendants that, although under this rule, it may be competent to the Court to allow inspection of the disputed premises, it is not open to the Court to direct the preparation of an inventory of the structures, fixtures and movables on the premises which are claimed by the plaintiff. In our opinion, there is no room for controversy that the Court may not only allow inspection, but may also direct the preparation of an inventory. The principles applicable to cases of this description, when an application has bgen made for inspection of the property in dispute in a suit, were elaborately discussed in Kynaston v. East India Company (1819) 3 Swanston 248, in which Lord Eldon upheld the right claimed by the plaintiff to inspect, survey and take measurements of the disputed property, and his decision was subsequently affirmed by the House of Lords [East India Company v. Kynaston (1821) 3 Bligh 153 at pp. 157-l68]. The principle upon which the right of inspection is justified is that wherever in respect of the property of one individual a right accrues to another which cannot be measured without inspection of the subject of property, the Court is competent to compel the proprietor to permit that inspection as indispensable for administering the justice of the case. Such inspection is no invasion of his rights, but a legal consequence of the obligation affecting the property and the proprietor. No doubt, the Court will take care to impose as little inconvenience as possible on those on whom the order is made, though the Court will not hesitate to make the order if it is satisfied that without inspection the justice of the case cannot be attained, and the proceedings are likely to miscarry. This principle was affirmed when the case was taken to the House of Lords, where Lord Redesdale pointed out that similar orders had been made from very early times: Marsden v. Panshall (1686) 1 Vernon 407; Lonsdale v. (sic) (1799) 3 Bligh 168 (Note) and Walker v. Fletcher (1804) 3 Bligh 172 (Note). Since the decision of the House of Lords, inspection has been frequently granted in the case of actions for recovery of possession of mines and enforcement of a claim for damages for unlawful wotking therein. [Attorney-General v. Chambers (1849) 12 Beavan 159; Lewis v. Marsh (1849) 8 Hare 97; Bennett v. Whitehouse (1860)28 Beavan 119 : 29 L.J. Ch. 326 : 4 Jur. (N.S.) 528 : 2 L.T. 45 : 8 W.R. 251 and Bennet v. Griffiths (1861) 3 Ellis, and Ellis. 467 at p. 476.] In some of these cases, not only was inspection allowed, but the plaintiff was permitted to survey the property, to take measurements and to prepare plans, so as to make controversy subsequently impossible as to the then condition of the premises. It has even been suggested that the Court might authorise the removal, where necessary, of obstructions to the inspection and, as an extreme case, allow trenches to be cut to ascertain the geological formation. [Ennor v. Barwell (1860) De G.F. and J. 529 : 7 Jur. (N.S.) 788 : 8 W.R. 300]. The same rule has been adopted in the American Courts, and the power has been exercised in some cases as inherent in the Court to adopt a procedure needed for the administration of justice, and in other cases upon statutory provisions closely similar to Order L, Rule 3, of the Rules of the Supreme Court in England. As recent instances of the exercise of such power, may be mentioned the cases of Heinze v. District Court (1903) 29 Mont. 105 : 74 Pacific 132 and Boston Copper Mine Company v. District Court (12). See also Wigmore on Evidence, Volume 3, Section 1862, and Daniell on Chancery Practice, 7th Edition, Volume IT, 1532. We must consequently hold 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 of the case. It may be pointed out, as ruled by this Court in Gobinda Mohan Das v. Kunja Behary Das (1901) 30 Mont. 206 : 76 Pacific 208, that the right to inspect documents ordinarily includes the right to take notes of their contents and also, upon application to the Court, to have copies of them. In fact, if a right of inspection were not construed to include a right to prepare an inventory as ancillary thereto, the very object of an inspection might be completely defeated. We must hold, therefore, that the Court had jurisdiction to make an order for preparation of an inventory under Order XXXIX Rule 7, of the Code of 1908.

3. As regards the second point, namely, whether this Court ought to interfere with an interlocutory order made by the original Court in the exercise of its discretion, it cannot be disputed that if a proper case is made out for interference, this Court is not powerless. It is sufficient to refer to the case of Gobinda Mohan v. Kunja Behary Das 10 C.L.J. 407 : 4 Ind. Cas. 364 : 14 C.W.N. 147, where it was pointed out that the test to be applied is, whether irreparable injury would be caused to one of the litigants, if matters were rot set right. In the case before us, it appears to us to be absolutely clear that an order for inspection and preparation of an inventory ought to be made. The defendants admit that they have already removed some of the movables claimed by the plaintiff. They further indicate plainly that removal of portions of the machinery may be needed. It is not necessary for us to prejudge the suit and to determine how far the claim of the plaintiff to the structures, fixtures and movables is sustainable; it is sufficient to say that there is substantial matter in controversy between the parties. Under these circumstances, if an inventory is not prepared, and the plaintiff ultimately succeeds, grave complications will obviously follow. The Court will have to determine, upon oral evidence of a more or less unsatisfactory character, what objects were on the premises and have been improperly removed by the defendants. A dispute of this character may be completely avoided if an inventory is made at this stage. It is suggested on behalf of the defendants that the proper remedy of the plaintiff is to apply for the appointment of a receiver or to obtain an injunction against the defendants. It is needless for us to discuss whether the plaintiff might have adopted either of these courses. It is fairly clear, however, that the Court would hesitate to appoint a receiver of a going concern, and, as the plaintiff does not lay any claim to the business itself, it is difficult to appreciate on what ground he could ask for the appointment of a receiver in respect of the business. It may also be observed that the grant of an injunction, if it is to be operative, must involve constant watch on the part of the plaintiff to ensure that the defendants did not remove the structures, fixtures and movables in violation of the injunction. The most convenient course obviously is to grant an inspection and to direct the preparation of an inventory.

4. The defendants suggest, and in our opinion very reasonably, that such inspection and preparation of inventory ought to be done so as to cause the least inconvenience to them. They explain that their opposition to the application is based on the ground that the order, when carried out, may cause them indignity and injure their business; but it is quite practicable to guard against any such contingency and the order, we shall make, will afford adequate protection to the defendants from this point of view.

5. The result is that this Rule is made absolute, and the order of the Court below is discharged. We direct the defendants to prepare a true and faithful statement of the structures, fixtures and movables on the premises, and to file it in Court within fifteen days from this date, with an affidavit by one of their responsible officers that the statement is accurate in every particular. When such statement and affidavit have been filed, the plaintiff will have inspection of the premises accompanied by an officer of the Court selected by the Subordinate Judge. Such officer, in the presence of the plaintiff and his pleader, will test the statement and ascertain whether the entries are accurate or not. The enquiry must be so conducted as to cause the minimum of inconvenience to the defendants, and the least disturbance to their business. If upon this enquiry the statement as filed by the defendants is found to be untrue in any material particular, it will be open to the Court to take suitable action. The Rule is made absolute to this extent. We make no order as to costs.


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