Calcutta High Court (Appellete Side)
For The vs Kesrimal Air 1971 Supreme Court on 17 April, 2012
Author: Soumen Sen
Bench: Soumen Sen
1 234 17.4.12
C.O. 1370 of 2006 jb.
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 2 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 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.
3Order 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. However, the order passed in Order 18 Rule 18 is required to be looked into for the purpose of ascertaining the reasons for disallowing the said application.
In the subsequent application filed under Order 39 4 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 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 5 deciding the real issues in the suit, such commission is required, the Court would not hesitate to exercise such power.
The hearing of this matter is concluded. This matter will appear in the list on 24th April, 2012 under the heading 'For Judgment'.
The parties are directed to file a copy of the order rejecting the application filed under Order 18 Rule 18 of the Code of Civil Procedure.
( Soumen Sen, J. )