Calcutta High Court (Appellete Side)
Jb. Artistery House Private Ltd vs U. Foam Private Ltd on 31 January, 2012
Author: Soumen Sen
Bench: Soumen Sen
1
8 31.1.12 C.O. 1880 of 2011
jb. Artistery House Private Ltd.
vs.
U. Foam Private Ltd.
Mr. Saktinath Mukherjee,
Mr. Saptangshu Basu,
Mr. A. Mitra,
Mr. J. Choudhury,
Mr. B. Kumar
.... For the Petitioner.
Mr. Kartik Bhattacharyya
.... For the Opposite Party
The refusal to appoint a commissioner on the
basis of an application filed under Order 39 Rule 7 of the
Code of Civil Procedure is the subject matter of challenge in
this revisional application. In a suit for eviction inter alia,
on the ground of violation of clauses (m), (o) and (p) of the
Transfer of Property Act, that application was filed by the
plaintiff for appointment of an advocate-commissioner for
local inspection on the following points:
" Points for local inspection
i) To note the present position/location of
the suit premises;
ii) To note whether there is existence of
any mezzanine floor and nature of its
construction;
iii) To note whether such mezzanine floor
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is embedded into the load bearing wall of
the building;
iv) To note whether there is any sign
board affixed in front of the said premises
and the particulars thereof ;
v) To note who is carrying on business
from the suit premises and who is in
occupation of the said premises;
vi) To note any other local feature or
features as may be pointed out by the
plaintiff at the time of local inspection."
The opposite party contested the said application and
dealing with the allegations made therein in paragraph '6'
has categorically stated that the defendant never
constructed mezzanine floor inside the suit premises. It
was further averred that the mezzanine floor was in
existence in the suit premises even before the
commencement of the tenancy and as such the question of
violation of any of the clauses of Section 108 of the
Transfer of Property Act could arise. The said application
was rejected on the ground that in the plaint although
there is mention of unauthorised construction, but there is
no reference of any mezzanine floor and accordingly it was
held that the purpose of the instant application is to collect
evidence in favour of the petitioner.
Mr. Saktinath Mukherjee, learned senior counsel
appearing for the petitioner submits that the Court below
has completely misdirected itself in considering the said
3
application since the plaintiff has already averred that
there is unauthorised construction and for the purpose of
ascertaining the nature of such unauthorised construction,
the said application was made. Mr. Mukherjee, however
fairly submitted that he would not press for clauses (i), (iv),
(v) and (vi) of the points for local inspection and would
restrict his claim to point nos. (ii) and (iii).
It is not in dispute that the plaintiff is the owner of
the property and one of the grounds for eviction is
unauthorised construction. There are averments about
unauthorised construction. If it were not there in the
plaint, the Court below would have been perfectly justified
in dismissing the said application. The plaintiff in fact, in
paragraph '5' of the plaint referred to unauthorised
construction without detailing the nature of such
unauthorised construction.
Mr. Saktinath Mukherjee refers to a decision of our
Court in the case of Amulya Kumar Samaddar & Anr.
vs. Ananda Charan Das & Ors. reported in 37 Calcutta
Weekly Notes 143 : AIR 33 Calcutta 475 on the relative
scope of Order 26 Rule 4 and Rule 9 and Order 39 Rule 7
of the Code of Civil Procedure. In the said decision, the
relative scope of the said sections has been lucidly
explained in the following words:
" Order 26, rule 4 of the Civil Procedure
Code enables the Court to issue a
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commission for the examination of absent
witnesses upon certain circumstances.
Order 26, Rule 9 similarly enables the Court
to issue a commission for local investigation
for the purpose of elucidating a matter in
dispute or ascertaining the market-value of
any property or ascertaining the amount of
mesne profits, etc. But where no matter
about which the parties are at variance
requires any explanation, but the question
is whether an assertion made on behalf of
one of the parties is a true assertion or not,
the proper procedure is to issue a
commission under Order 39, Rule 7,
authorising 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 requiring him to
give his evidence as regards the result of
such observation."
*****
" .... That rule evidently was lost sight of by the learned Munsif and what he did was to issue a commission which on the face of it purported to be issued under Or. 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 Or. 26. r. 9 of the Code. 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 within which a matter of this description may be reasonably attempted to be brought, is the 5 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 enquire into and decide upon. The whole procedure that was adopted in this case was, therefore, wrong...."
In the said proceeding before the Hon'ble Court a question arose as to whether certain huts standing on the land had been recently constructed or were in existence from long time before. For the aforesaid purpose, the Munsif issued a commission for a local inspection, in the form prescribed for a commission to examine absent witnesses which is issued under Order 26 Rule 4 and Rule 18 of the Code of Civil Procedure. This form was altered to suit a commission for holding a local inspection. The heading was altered in that way and the body of the writ was also to a certain extent altered, it being stated that the Commissioner would be required to hold a local inspection of the disputed lands and the inspection would be held in the presence of all the parties or their agents in attendance. There were certain defects in the form in which such commission was issued. The said writ was set aside after having examined the purpose for which the 6 commission was issued, since it was held that under the facts and circumstances, it was quite clear that the matter could not have been dealt with under any of the provisions of Order 26 at all but under Order 39 Rule 7 which would have been the proper procedure.
The said decision was also considered in a subsequent decision reported in AIR 1997 Calcutta 80 (Allahabad Bank vs. Sourendra Nath Shaw & Anr.). The Division Bench considered the said decision and affirmed the view expressed by the learned single Judge in the said decision in paragraph '7' which is reproduced hereinbelow:
"7. It is also true that such appointment of Commissioner for ascertaining the condition of the concerned premises or any part thereof by making local inspection comes within the purview of Order 39, Rule 7 and not Order 26, Rule 9, C.P.C. (Nitendranath vs. Subhas, AIR 1981 Calcutta 319, Amulya vs. Ananda, AIR 1933 Calcutta 475) and ordinarily the Commissioner should be examined in support of his report."
Per contra, the learned counsel appearing for the opposite party submits that no commission should be issued for the purpose of collecting evidence and the nature of the application is such that the plaintiff in fact, is seeking to collect evidence which is not permitted in law. In short, he submitted that no commission can be issued for the purpose of collecting evidence in a suit. In this regard he relied upon a decision in the case of The Institution of 7 Engineers (India) and another vs. Bishnu Pada Bag & Anr. reported in AIR 1978 Calcutta 296. In the said case an application was filed under Order 39 Rule 7 of the Code of Civil Procedure for appointment of a pleader- commissioner to count the proxy votes from Utkal and others and to perform the other works as indicated in the earlier order dated 11th January, 1977. The Institute objected to such order being passed on the ground that Order 39 Rule 7 applies to the subject matter of the suit and not to any evidence in a suit. It was further submitted that even under Section 151 such commission could not be issued by the Court because issue of an inventory commission for helping a party to fish out evidence is opposed to justice.
On the other hand, it was contended on behalf of the opposite party that under Order 39 Rule 7 it is not necessary that the said provision must confine to the subject matter of the suit itself and appropriate order can be passed under Order 39 Rule 7 of the Code of Civil Procedure even in respect of matters in respect of which any question may arise in the suit.
Learned single Judge after considering the aforesaid submission held as follows:-
".... It may be stated in this connection that even assuming that the provision of O. 39 R. 7 may relate not only to the subject matter of the suit but also in other matters in which any question may arise relating to the suit, no commission can be issued for the purpose of collecting 8 evidence in a suit. 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 essesntial requirement of such a step even in a case where O. 39 R. 7 C.P.C. is otherwise applicable. Mr. Maitra, further contended that in appropriate cases, the Election Tribunal has looked into the ballot papers for ascertaining the position and in this context he refers to a decision reported in AIR 1964 SC 1249. It may be stated that as a proposition of law it cannot be said that even in appropriate cases the ballot papers cannot be looked into by the Court for proper adjudication of a dispute between the parties but what is emphasised is that such action should not be taken without extreme care and caution and only in such cases where inspection of ballot papers is essentially necessary for proper adjudication and the Court is satisfied on evidence that such extreme step is necessary. Mr. Maitra further contended that issue of an inventory commission is a matter of discretion of the Court and if the Court has exercised such discretion there should be no interference under S. 115 C.P.C. particularly when such exercise of discretion is not perverse. The question of exercising discretion, however, does not arise in this case because we are of the view 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....."
It is thus clear that an application under Order 39 Rule 7 of the Code of Civil Procedure for the purpose of appointment of commissioner may not only relate to the subject matter of the suit but what is to be kept in mind is that such discretion should be exercised in a meaningful manner and having regard to the nature of the dispute 9 involved in the lis. In the instant case having regard to the averments made in the plaint and the application under Order 39 Rule 7 of the Code of Civil Procedure, point nos.
(ii) and (iii) are concerned, the plaintiff is entitled to seek appointment of a commissioner in terms of Order 39 Rule 7 of the Code of Civil Procedure. In respect of other two points, the plaintiff is not entitled. The reasoning given by the learned Single Judge for rejecting the said application suffers from misconception of law. In view thereof, the application is allowed.
The learned Court below is directed to appoint an advocate-commissioner for the purpose of local inspection on point nos. (ii) and (iii) only.
It is needless to mention that the report, if any filed by such commissioner can always be challenged if the defendant is not satisfied. Even the commissioner is subject to cross-examination.
In view thereof as such no prejudice would be caused to the defendant.
The revisional application accordingly succeeds in part.
The order under challenge is set aside to the extent as indicated above.
10There shall be no order as to costs.
Certified xerox copy of the order, if applied for, be give to the parties on usual undertaking.
( Soumen Sen, J. )