Calcutta High Court (Appellete Side)
For The vs Kesrimal Air 1971 Supreme Court on 15 May, 2012
Author: Soumen Sen
Bench: Soumen Sen
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2012
r.
C.O. 1370 of 2006
Mr. Mahendra Prasad Gupta
.... For the Petitioner
Mr. Sanjib Chakraborty
.... For the Opposite Party no. 1
This revisional application is at the instance of the adjoining owner who complains that
the opposite parties have raised construction without any sanctioned plan and committed various
acts of nuisance for which the plaintiff is required to be compensated. In the suit the plaintiff has
prayed for a declaration that the construction raised in the schedule property by the defendant
no. 1 is unlawful, unauthorized and such construction of the defendant no. 1 is an act of
actionable nuisance and also for permanent injunction and other reliefs. The plaintiff submits
that in spite of objection raised with regard to such construction and nuisance, the Municipal
Corporation did not take any step. In paragraph '8' of the said plaint, the plaintiff alleges that the
defendant no. 1 has constructed a well privy digging the well just adjacent east to the ring well in
which the residential building of the plaintiff is situated. The plaintiff would be using the water of
the ring well for domestic purpose and by raising of such illegal digging of the well, the plaintiff is
not getting the filtered water. Moreover, the water coming from the ring well is emitting obnoxious
smell polluting the water of the plaintiff. The plaintiff lost the suit and preferred an appeal being
title appeal no. 144 of 2004. During the pendency of the suit, the plaintiff initially filed an
application under Order 18 Rule 18 of the Code of Civil Procedure.
Learned counsel appearing for the opposite party no. 1 submits that although the
nomenclature of the said application was under Order 18 Rule 18 of the code of Civil Procedure
but in effect the plaintiff-appellant wanted a local inspection by an advocate commissioner on the
five points which also forms the basis of the later application filed under Order 39 Rule 7 of the
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Code of Civil Procedure. The application filed under Order 18 Rule 18 read with Section 151 of
the Code of Civil Procedure is produced before me. There is no doubt that in the said application,
a prayer was made for inspection by the Court or by appointing an advocate-commissioner to
hold local inspection on points 1 to 5. Learned counsel for the parties however, is unable to
produce the order by which the said application was rejected. The said order is relevant since it
appears that one of the grounds on which the later application filed under Order 39 Rule 7 of the
Code of Civil Procedure was rejected was that on an earlier occasion the application filed under
Order 18 Rule 18 read with Section 151 of the Code of Civil Procedure was rejected but not
appealed against. Accordingly, the present application is barred by the principle of res judicata.
Order 18 Rule 18 of the Code of Civil Procedure permits the Court at any stage of the suit
to inspect any property or thing concerning which any question may arise. The purpose is only to
enable the Court to appreciate the evidence that the parties may adduce and tests its accuracy.
The observation made by the Court during such local inspection is only for the purpose of
understanding of the evidence given by the witness and the judgment of the Court should not be
based solely on the observation made by the Court on the local inspection (Ugam Singh vs.
Kesrimal AIR 1971 Supreme Court, 2540) However, the consideration for deciding an
application under Order 39 Rule 7 of the Code of Civil Procedure are not the same consideration
which is required to be considered by the Court in deciding the application under Order 18 Rule
18 of the Code of Civil Procedure since it would be open for the Court to decline any such request
as other powers are available to a party for having a local inspection or local investigation as the
case may be in terms of Order 26 Rule 9 and Order 39 Rule 7 of the Code of Civil Procedure.
Hence strictly speaking a mere rejection of an application under Order 18 Rule 18 of the Code of
Civil Procedure may not attract the principle of res judicata in deciding an application filed under
Order 39 Rule 7 of the Code of Civil Procedure.
In the subsequent application filed under Order 39 Rule 7 of the Code of Civil Procedure
in so far as the point '6' is concerned, the said point was not there in the earlier application
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although it was open for the appellant-petitioner to pray for such inspection. It is argued in the
event it is ultimately found that the trial Court rejected the said application under Order 18 Rule
18 of the Code of Civil Procedure treating the same to be an application under Order 39 Rule 7 of
the Code of Civil Procedure then at this appellate stage, the same should not be allowed to be
agitated since it was open for the petitioner-appellant to raise such point when the application
under Order 18 Rule 18 was filed. The provision for inspection in Rule 7 of Order 39 has been
enacted mostly for the purpose of keeping on record the existing condition of the property so that
the same is subjected later on to any change, deterioration or mischief by any of the parties or by
any such agency to the proceeding that can be known by the Court if and when required. The
said provision empowers the Court to make an order of detention, preservation and inspection of
any property which is a subject matter of the suit or as to which any question may arise in the
suit. In this case there is positive assertion in the plaint that there have been acts of actionable
nuisance. It is true that the plaintiff lost the suit and appeal is pending and allowing of such
application under Order 39 Rule 7 of the Code of Civil Procedure may result in introduction of
piece of evidence at the appellate stage. But merely because such application was filed at the
appellate stage and if there are sufficient reasons for entertaining such application and the Court
finds that in deciding the real issues in the suit, such commission is required, the Court would
not hesitate to exercise such power.
The order dated 20th May, 2004 passed by the learned trial Judge is produced today in
Court wherefrom it appears that the learned trial Judge considered the said application on merits
treating it an application for appointment of an Advocate Commission. The said order has not
been challenged.
In view thereof, the said order has attained finality. Even in the
subsequent application no additional ground has been made out to re-agitate the
same issues, namely, point nos. 1 to 5 which were decided against the petitioner.
However, point no.6 is a new point, which was not urged or considered by the
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learned trial Judge at any earlier point of time. The point no.6 is relevant for the
purpose of deciding the said appeal.
In view of the aforesaid there shall be an local inspection in respect of point
no.6 is reproduced herein below:
" 6. To note down the location of the ring well of the appellant and the location of
the privy of the respondent no.1. "
The petitioner is directed to approach the appellate court for appointment of an Advocate Commissioner in respect of point no. 6.
The revisional application succeeds in part. There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocate for the parties in compliance of necessary formalities.
(Soumen Sen, J.)