Calcutta High Court (Appellete Side)
Mr. Om Narayan Rai .....For The vs State Of U.P. Reported In Air 1961 Sc 218 on 20 June, 2011
Author: Soumen Sen
Bench: Soumen Sen
1 0.06.2011
c 37 C.O. 4025 of 2010
Mr. Om Narayan Rai .....for the petitioners.
Mr. B. Sau ...for the opposite parties.
In a suit for eviction on the ground of encroachment, the
plaintiffs/petitioners filed an application under Order 39 Rule 7 of the Civil Procedure Code for appointment of an Advocate Commissioner to make a reference for local inspection on the following items.
"1. To note the condition of the suit premises, including its all walls, roof, gate, etc.
2. To note the measurement of the suit premises.
3. To note the measurement of the walls and gate of the suit premises.
4. To note the distance between the western side wall of suit premises and the western side room i.e. room No.11.
5. To note and measurement of the gate on the southern side passage."
It appears that in paragraph 5 of the plaint, the plaintiffs/petitioners alleged that the defendants/opposite parties illegally and without the written permission and/or consent from the plaintiffs/petitioners have encroached the common passage about 7' x 20' = 140 Sq.Ft. by breaking the western side wall of the room no.7 and attached with the room no.11 constructed gate on the southern side of the passage which is also caused for eviction. The said averment has been denied by the defendants/opposite parties. Accordingly, the issue is required to be framed for determination of the said point.
The learned counsel appearing for the plaintiffs/petitioners submits that it is essential to appoint an Advocate Commissioner to inspect the said premises in question since the said portion is within the control of the defendants/opposite parties and the plaintiffs/petitioners had no access. 2 The defendants/opposite parties, on the other hand, submitted that allowing the petition would amount to fishing out evidence by the Court and in this regard the learned counsel has relied upon A.I.R. 1978 Cal. 296. The said judgment reiterated the principle laid down by the Apex Court in the case of Padam Sen Vs. State of U.P. reported in AIR 1961 SC 218, wherein it was held that "if there is any allegation that certain documents are forged, the party can prove forgery by evidence but it was not the business of the Court to collect evidence for the party".
I am unable to appreciate how the said judgment is relevant in the present case. Even the judgment relied upon by the defendants/opposite parties (A.I.R. 1978 Cal. 296), wherein Their Lordships held "in any event, such Commission should not be issued for making inventories relating to ballot papers by ex parte orders without proper verification as to the essential requirement of such a step even in a case where Order 39 Rule 7 of the Civil Procedure Code is otherwise applicable."
It appears that the said application was dealt with by the learned Court below mechanically and without adverting its mind to the respective pleadings and the scope and ambit of under Order 39 Rule 7 of the Code. From the impugned order, it appears that the learned Court below also practically did not give any reason for rejecting the said application.
In view thereof, the order impugned stands set aside. The learned Court below is directed to consider the said application afresh by taking into 3 consideration the provisions of Order 39 Rule 7 of the Code uninfluenced by the observations made hereinabove in this case.
The revisional application stands disposed of without any order for costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties as quickly as possible.
(Soumen Sen, J.)