Calcutta High Court (Appellete Side)
(Bd) vs Sri Sankar Paul & Ors on 14 February, 2020
1 14th February, C.O. 3018 of 2019 2020 (40) Sri Tapan Chatterjee @ Tapan Chatterjee (BD) -vs-
Sri Sankar Paul & Ors.
Mr. Prosenjit Mukherjee Mr. Saptarshi Chakraborty Mrs. Shreyashi Saha ... for the Petitioner.
Mr. Shehnaz Tareq Mina Mr. Intikhab Alam Mina Mr. Pratik Sarkar ... for the Opposite party No.1.
In this petition under Article 227 of the Constitution of India the petitioner has challenged an order dated 08.07.2019 passed by the Learned 6th Civil Judge (Jr. Division) at Alipore in connection with Title Suit No. 276A/11 rejecting the prayer made in the application under Order 39 Rule 7 of the Code of Civil Procedure. By the said order an application of the petitioner for local inspection under Order 39 Rule 7 of the Code of Civil Procedure was rejected. This rejection was on the ground that a similar application had been taken out earlier by the same petitioner but under the provisions of Order 26 Rule 9, and had been rejected by an order dated June 6, 2013 by the said learned Court on a finding that it was not maintainable and outside the scope and purview of the provisions of Order 26 Rule 9 of the Code of Civil Procedure and the same are to be ascertained and adjudicated by the Court by taking proper evidence and not otherwise. This order was not challenged and allowed by Mr. Mukherjee's client to achieve finality.
I am rather surprised that the fact that certain matters which are in dispute in the suit and require elucidation, for which purpose an application for 2 local investigation has been taken out was dismissed on the ground that this was something which had to be ascertained and adjudicated by taking proper evidence. I would have thought that this recording or reason is sufficient to allow the said petition. However, since no challenge was made to this order which has achieved finality and to the extent that it has been held to be not maintainable if binds the party, I can say nothing more.
The petitioner thereafter took out a fresh application this time under Order 39 Rule 7 for the same purpose requiring the elucidation of that which was alleged in the plaint and was naturally a matter in dispute in the suit.
Mr. Mukherjee, learned advocate, appearing for the petitioner relied upon 2014 SCC OnLine Raj 2283: AIR 2014 Raj 116 in the case of Shafiq Ahmed v.- Naseer Ahmed & Others, for the proposition that the inspection report under order 39 rule 7 would tantamount to evidence. In this judgment, the decision of a co-ordinate Bench of this Court was distinguished or held to have not dealt with the issues. Mr. Mukherjee has also relied upon a Judgment reported in 1932 SCC OnLine Cal 238: AIR1933 Cal 475 in the case of Amulya Kumar Samaddar and Others -versus- Ananda Charan Das & others, where he has relied upon paragraphs 4 and 5.
"4. Now having regard to the purpose; for which the commission was issued it is quite clear that the matter should have been dealt with not under any of the provisions of O.26 at all, but under O.39 R.7, the proper procedure being for the party to apply to the Court to authorise some particular person to go upon the land or enter the structure standing on it for the purpose of making an observation with regard to the condition of things existing there and to have come back to the Court to give his evidence as regards the result of such observation. That no doubt was the proper, provision of the law to be resorted to for meeting the requirements of a case of this nature. That rule evidently was lost sight of by the learned Munsiff and what he did was to issue a commission which on the face of it purported to be 3 issued under O.26, R.4 which rule however has got no application whatsoever to the case being a rule which enables the Court to issue a commission for the examination of absent witnesses upon certain circumstances but which may perhaps be and is indeed sought to be justified upon the provisions contained in O. 26 R. 9 of the Code.
5. The last mentioned rule however was not meant to cover a case of this description. It only enables the Court to depute a Commissioner to hold a local investigation for the purpose of elucidating a matter in dispute or ascertaining the market value of the property or ascertaining the amount of mesne profits or damages or annual net profits etc. The only part of this rule withing which a matter of this description may be reasonably attempted to be brought is the part which says that a commission may be issued for the purpose of elucidating a matter in dispute. This commission however was not for the purpose of elucidating any matter about which the parties were at variance because there was nothing which required any explanation what was required was a decision on the question as to whether what was asserted on behalf of the other side namely that the structures standing on the land were recent and not old structures was a true assertion or not a matter about which the Court and the Court alone had jurisdiction to inquire into and decide upon. The whole procedure that was adopted in this case was therefore wrong. Besides all these, there was a defect in the writ which necessarily had the effect of misleading the parties. The writ by the terms contained in its body provided for the examination and cross-examination of witnesses, it never having been the intention of the Court at all to issue a commission for that purpose. It is not suggested that such witnesses as were examined by the Commissioner, in fact, in execution of this writ fulfilled the requirements mentioned in O.26, R.4. The whole thing therefore was misconceived and as a result of this irregularity and defect witnesses who were examined before the Commissioner were not examined before the Court and their deposition was lost. The report of the Commissioner also was of no avail to either side. I am clearly of opinion that the Courts below should not have left the matter in the state in which they have done in their judgment."4
It is now quite important to consider the provision of Order XXVI Rule 9 and Order XXXIX Rule 7 of the Code of Civil Procedure.
"O.XXXIX R.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 purpose aforesaid authorize and 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.
O. XXVI, R 9. Commissions to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."5
It would be apparent that Order XXVI rule 9 is for the purpose of local investigation and not local inspection. The difference lies in their purposes. What is done under Order 26 Rule 9 is elucidating any matter in dispute by such investigation and to report thereon to the Court and Rule 10 makes it clear that the Commissioner may make local inspection but also reducing to writing evidence taken by him shall return such evidence together with his report in writing signed by him to the suit and the report of the Commissioner and the evidence taken by him shall be evidenced in the suit and shall form a part of the record, subject to the Commissioner may examine personally. Therefore, I am afraid I cannot agree with Mr. Mukherjee that the purpose of local inspection and that of local investigation are the same as admitted to be submitted by him by going to Rajasthan while being in Calcutta.
On the other hand, the learned advocate for the opposite parties has rightly relied upon the decision in the case of The Institution of Engineers (India) and another, v. Bishnu Pada Bag and another, reported in AIR 1978 Calcutta 296 of the Hon'ble High Court at Calcutta Bench which has held categorically that "an inventory commission cannot be issued for the purpose of fishing out some evidence which may be adduced by either of the parties in the suit. It is, therefore, an improper exercise of jurisdiction by the Court below and such improper exercise has occasioned material failure of justice. The Rule is, therefore, made absolute."
Therefore, the application made by Mr. Mukherjee's client to elucidate a matter in dispute in the suit being the blockage of the passage on its northern side which has also an allegation made in paragraph 17 and prayer (c) of the plaint cannot be the subject matter of a local inspection under Order 39 Rule 7 and for this reason alone, if no reason is assigned by the learned Court below, such application ought to have failed. Accordingly, I have no alternative but to dismiss the petition under Article 227 of the Constitution of India holding that the order passed was correct but the reason was not those applicable it as above.6
The dismissal of this petition shall not prevent the petitioner from applying afresh under Order 26 Rule 9 of the Code of Civil Procedure and if he makes such application the earlier dismissal of the application under Order 26 Rule 9 on June 6, 2013 would not be a bar and would not be a ground to reject this application.
No order as to costs.
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