Calcutta High Court (Appellete Side)
Samir Kr. Roy & Ors vs Kanika Ghosh on 26 September, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
1
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
Present : Hon'ble Justice Dipankar Datta
C.O. 3216 of 2011
Samir Kr. Roy & ors.
Versus
Kanika Ghosh
For the petitioners : Mr. Sourav Sen, Advocate
For the opposite party : Mr. Shyamal Sur, Advocate
Mr. Debashis Roy , Advocate
Heard on : 16th and 22nd September, 2011
Judgment on : 26th September, 2011
1.The predecessor-in-interest of the petitioners instituted a suit for eviction of the opposite party from holding no.102 (hereafter the suit holding), inter alia, on the ground of reasonable requirement. He intended his sons to start a jewellery business therefrom. During pendency of the suit, the original plaintiff passed away. The petitioners were substituted in his place as plaintiffs. The learned Judge of the trial Court was apprised by the opposite party that the plaintiffs had suppressed availability of a 2 reasonably suitable alternative accommodation at holding no.105 (hereafter the said holding). P.W. 1 admitted in his evidence that his mother was the owner of the said holding when she died. The trial Judge was of the view that since a reasonably suitable alternative accommodation was available to the plaintiffs, they did not require the suit holding for their own use and, consequently, dismissed the suit.
2. The judgment and decree of the trial Court was challenged in an appeal. During pendency of the appeal, the petitioners filed an application for amendment of the plaint under Order 6 Rule 17, Civil Procedure Code (hereafter the Code) seeking to bring on record a plea that the said holding was not a reasonably suitable alternative accommodation available to them, which could be considered as a ground for disentitling relief claimed in the suit. The application for amendment of the plaint was allowed by the appellate Court. The resultant order was challenged by the opposite party by filing a revisional application before this Court. A learned Judge of this Court by order dated 7th May, 2010 opined that the amendment was necessary for effective and complete decision on the point in controversy between the parties and, therefore, disposed of the same without interfering with the order impugned.
3. After the application for amendment of the plaint was allowed, the petitioners filed an application under Order 41 Rule 27 of the Code before the appellate Court seeking permission to produce additional evidence. The said application and the appeal were thereafter heard together. The appeal 3 stood allowed by judgment dated 27th May, 2011 along with the said application. The impugned judgment and decree was set aside and the suit sent on remand. The trial Court was directed to give opportunity to the opposite party to produce additional evidence confined to paragraph 5(a) of the plaint, which had been incorporated therein as a result of the application under Order 6 Rule 17 of the Code being allowed. The trial Court was further directed to receive additional evidence, if led by the parties, and to decide the suit within three months.
4. While the suit was being tried on remand by the learned Judge, an application under Order 39 Rule 7 of the Code followed at the instance of the petitioners. It was pleaded therein that for effective decision on the point in controversy, the suit holding as well as the said holding ought to be inspected by appointing an advocate commissioner and a report ought to be filed on the following points:
1. What is the nature & condition of the suit room, whether the suit room is being used for selling readymade garments?
2. How the Holding No.105 is separated from the suit holding No. 102?
3. Whether the holding No. 105 is A.B. Road facing?
4. What is the boundary of holding No. 105?
5. Local feature & rough sketch map showing holding No. 102 and holding No. 105 by drawing a line.
5. The learned Judge of the trial Court by order no.154 dated 5th September, 2011 rejected the application for local inspection on the grounds that Order 39 Rule 7 of the Code does not permit inspection of any property other than the suit property and that the prayer for inspection of the suit 4 holding was an attempt on the part of the petitioners to collect evidence, which is impermissible in view of the Bench decision of this Court reported in AIR 1978 Calcutta 296 : Institution of Engineers (India) Vs. Bishnu Pada Bag.
6. In this revisional application under Article 227 of the Constitution of India, the petitioners have assailed the propriety and/or legality of the aforesaid order basically on the ground that the learned Judge exercised discretion erroneously.
7. Mr. Sen, learned advocate for the petitioners contended that the learned Judge misdirected himself in holding that in terms of Order 39 Rule 7 of the Code, no property other than the suit property could be inspected. Referring to the words "inspection of any property which is the subject- matter of the suit" appearing in clause (a) of sub-rule (1) of Rule 7, he contended that a narrow construction thereof ought not to be given. According to him, in a suit for eviction under the West Bengal Premises Tenancy Act, 1997 where eviction is claimed on the ground of reasonable requirement, it is necessary for the Court to ascertain whether or not the plaintiff is in possession of a reasonably suitable alternative accommodation by conducting local inspection and that would mean inspection of the said accommodation which necessarily may not be the property from which the tenant is sought to be evicted. In support thereof, he placed reliance on the decisions of learned single Judges of this Court 5 reported in 1995 (2) CLJ 496 : Amar Singh Saini v. Rup Chand Das & anr. and 2010 (4) CHN 221 : Atanu Basak v. Shiba Prasad Mukherjee.
8. The decision reported in 2001 WBLR (Cal) 729 : Santosh Kr. Saha v. Geeta Paul and ors. was cited by Mr. Sen, wherein a learned Judge of this Court explained the difference in scope of a local inspection under Order 39 Rule 7 of the Code and a local investigation under Order 26 Rule 9 thereof. It was urged that the report of local inspection ipso facto does not become evidence in the suit but to be admitted in evidence and relied upon, the contents thereof have to be proved and the opposite party would have full opportunity to counter argue that the Court ought to discard it from its consideration.
9. Accordingly, he prayed for an order to set aside the order under challenge and to direct the trial Court to appoint an advocate commissioner for conducting local inspection.
10. Mr. Sur, learned advocate for the opposite party opposed the revisional application. According to him, the learned Judge was right in concluding that the application had been filed for collecting evidence. He contended that the application for local inspection reveals the pleading that a local inspection ought to be conducted to 'minimize the oral evidence' and, therefore, it is clear that the report was intended to be relied on in evidence as substitute of oral evidence. It was further contended that at the time evidence was being recorded by the trial Court, P.W.1 waived his right to have local inspection by deposing that no such inspection is necessary. In 6 support of his submission that the petitioners had waived their right to have local inspection conducted, Mr. Sur relied on the decision reported in AIR 1979 SC 621: M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and ors. The Bench decision of this Court reported in AIR 2000 Calcutta 91 : The Owners and Parties Interested in the Vessel M. V. "Baltic Confidence" v. The State Trading Corporation of India Ltd. and anr. was relied on by him for the proposition that a receiver cannot be appointed to assess damages suffered by a party, which is claimed in the suit for damages. The decision in Institution of Engineers (supra) was also relied on by him to sustain the impugned order. He, accordingly, prayed for dismissal of the revisional application.
11.I have heard learned advocates for the parties and perused the materials on record.
12.First, I propose to deal with the points urged by Mr. Sur.
13.I am not at all impressed that the application is hit by the principle of waiver for the reason that deposition of P.W.1 referred to by him was recorded at the stage the suit was initially being tried by the learned Judge, and once the application under Order 41 Rule 27 of the Code was allowed by the lower appellate Court and the suit sent on remand for receiving evidence on the contents of paragraph 5(a) of the plaint, the petitioners acquired a right to lead evidence in relation thereto. The order sending the suit on remand not having been questioned by the opposite party, thereby allowing the same to attain finality, the petitioners' right in 7 law to lead evidence cannot be said to have ceased based on what transpired before dismissal of the suit by the trial Court. The decision in M/s. Motilal Padampat Sugar Mills Co. Ltd. (supra) reiterates that waiver is abandonment of a right which may either be express or implied from conduct but its basic requirement is that it must be an intentional act with knowledge. However, having regard to the special facts of this case and the unchallenged order of remand, the argument based on the point of waiver does not have any force.
14.The two Bench decisions relied on by Mr. Sur may now be considered.
15.Right from the stage of filing the application under Order 6 Rule 17 of the Code, it has been the endeavour of the petitioners to project that the accommodation available to them at the said holding is not suitable for conducting business. Local inspection was prayed for as a step in aid of establishing this assertion. In the event they are successful in establishing the same, their suit might possibly be decreed. The decisions in Amar Singh Saini (supra) and Atanu Basak (supra) are authorities recognizing that in a suit for eviction based on reasonable requirement, local inspection for ascertaining whether the extent of accommodation that is presently available to the plaintiff is reasonably suitable or not is necessary so as to assist the Court in arriving at a correct decision in course of determining the point in controversy. On the authority of these two decisions, which were rendered in connection with suits for eviction, I do not have any hesitation to hold that the learned Judge of the trial Court 8 acted illegally by adopting a wrong approach in placing reliance on the decision in Institution of Engineers (supra), which did not arise from an eviction suit but arose from a suit seeking a declaration that the resolutions passed in the meetings dated 31st October, 1976 and 1st November, 1976 by the Institution of Engineers (India) were illegal, arbitrary and void and also for a decree for permanent injunction restraining the defendants to carry into effect any of the resolutions passed in the said meetings and for other ancillary relief. There, the plaintiff prayed for appointment of a pleader commissioner for the purpose of preparation of the proxy vote from Utkal on the allegation that the counting of proxy forms was wrong. It would be profitable to quote a passage from the said decision:
"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 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 essential requirement of such a step even in a case where O. 39 R. 7 C. P. C. is otherwise applicable."
16. While there can be no dispute with regard to the general principle that a local inspection under Order 39 Rule 7 of the Code cannot be directed to collect or fish out evidence, the Bench proceeded to interfere firstly because the order for local inspection was passed ex-parte and secondly for the reason found in the aforesaid extract. The said decision is, therefore, clearly distinguishable on facts.
9
17.The decision in The Owners and Parties Interested in the Vessel M. V. "Baltic Confidence" (supra) lays down the law that in a suit for damages, the claim is to be proved by adducing independent evidence and not by appointing a receiver for the purpose of collecting evidence and assessment of damages suffered. Having regard to the difference in factual aspects, this decision is also of no assistance to Mr. Sur.
18.As has been held in the decision reported in Santosh Kr. Saha (supra), local inspection is directed by the Court to inspect a property forming subject matter of the suit and the report of local inspection ipso facto does not become a part of the record; it is only after the report is proved by means of evidence and made an exhibit that it can be admitted in evidence, and it is only thereafter that it can be relied on. In my view, the words "inspection of any property which is the subject matter of such suit" in relation to a suit for eviction is not confined to the property from where the tenant is sought to be evicted but would also include the accommodation that is available to the plaintiff at the relevant date of consideration since it forms part of the subject matter of the suit, i.e. whether a ground for eviction based on reasonable requirement is laid or not. This seems to be the underlying consideration in support of the view taken in Amar Singh Saini (supra) and Atanu Basak (supra) and I am in complete agreement with Mr. Sen. Keeping in mind the above, I am satisfied that the learned Judge proceeded on a wrong premise.
10
19.Bearing in mind the legal principles discussed above, the point that is left for consideration is whether the petitioners are entitled to an order for local inspection in the perspective of their application under Order 39 Rule 7 of the Code.
20.Considering the points on which inspection was sought for by the petitioners, I do not have any doubt in my mind that even if a report on local inspection is obtained on most of the points mentioned in the schedule of the application, the same would hardly assist the trial Court in dispensing justice to the parties. Mr. Sen did not disagree that point 1 ought to be proved by evidence and not local inspection, whereas points 2 and 4, in my view, are hardly relevant and material and, therefore, inspection on these points would not assist the Court in any manner to give a proper decision on the point in controversy. If at all, report on points 3 and 5 together with other points (which do not find mention in the application) could be of some assistance to the learned Judge. I am, therefore, of the clear opinion that the application for local inspection in its present form does not warrant a favourable order and the learned Judge ultimately rejected the application rightly but not on grounds that are found to be acceptable. Interest of justice, in my further view, would be best served if the petitioners are granted liberty to file a fresh application giving appropriate particulars in respect of points on which they seek local inspection so that the purpose for which the suit was remanded is not rendered otiose.
11
21.Accordingly, this revisional application stands disposed of without interfering with the order under challenge. However, liberty is reserved to the petitioners to file an appropriate application, if so advised, and if such application is made, the learned Judge of the trial Court shall proceed to dispose of the same according to law.
22.There shall be no order for costs.
Photostat certified copy of this judgment and order may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)