Back
High Court Of Calcutta
Ganendra Narayan Ray
NEPAL CHANDRA DUTTA - Appellant
Versus
MRINAL CHANDRA DUTTA - Respondent
Civil Rule 3087 Of 1979
Decided On : 11/27/1979
ORDER 39 RULE 7 CIVIL P. C. - INVENTORY AND INSPECTION - SECTION 115 CIVIL P. C. - REVISIONAL POWER - URGENCY - SUBJECT-MATTER OF SUIT - BOOKS OF ACCOUNTS - EVIDENCE - INJUNCTION - RECEIVER - PARTNERSHIP - ACCOUNTS - INFRACTION OF SUBSTANTIAL RIGHTS - IRREPARABLE LOSSES - EX PARTE ORDER - INTERIM ORDER - SECTION 151 CIVIL P. C. - SUMMARY OF ACTS AND SECTIONS DISCUSSED - ORDER 39 RULE 7, SECTION 115, SECTION 151 CIVIL P. C. - ORDER 39 RULE 7 CIVIL P. C. EMPOWERS THE COURT TO MAKE AN ORDER FOR DETENTION, PRESERVATION OR INSPECTION OF ANY PROPERTY WHICH IS THE SUBJECT-MATTER OF SUCH SUIT OR AS TO WHICH ANY QUESTION MAY ARISE THEREIN. - SECTION 115 CIVIL P. C. PROVIDES FOR THE REVISIONAL POWER OF THE HIGH COURT. - SECTION 151 CIVIL P. C. EMPOWERS THE COURT TO PASS SUCH ORDERS AS MAY BE NECESSARY FOR THE ENDS OF JUSTICE OR TO PREVENT ABUSE OF THE PROCESS OF THE COURT.
Fact of the Case:
THE PETITIONER, A DEFENDANT IN A SUIT FOR DECLARATION OF PARTNERSHIP PROPERTIES, ACCOUNTS AND INJUNCTION, CHALLENGED AN EX PARTE ORDER PASSED UNDER ORDER 39 RULE 7 READ WITH SECTION 151 CIVIL P. C. APPOINTING AN ADVOCATE COMMISSIONER TO TAKE AN INVENTORY OF THE PARTNERSHIP'S BOOKS OF ACCOUNTS.
Finding of the Court:
THE COURT HELD THAT THE TRIAL COURT WAS SATISFIED THAT THERE WAS A CASE FOR IMMINENT LOSS AND PREJUDICE TO BE SUFFERED BY THE PLAINTIFF BY THE ACT OF THE DEFENDANT AND PASSED THE IMPUGNED EX PARTE ORDER ON THAT BASIS. THE COURT ALSO HELD THAT THE DEFENDANT WOULD NOT SUFFER ANY LOSS OR PREJUDICE BY THE IMPUGNED ORDER.
Issues: 1. WHETHER THE EX PARTE ORDER FOR INVENTORY AND INSPECTION UNDER ORDER 39 RULE 7 CIVIL P. C. WAS VALID. 2. WHETHER THE BOOKS OF ACCOUNTS WERE THE SUBJECT-MATTER OF THE SUIT OR DOCUMENTS TO BE RELIED ON AS EVIDENCE.
Ratio Decidendi: 1. THE COURT HELD THAT THE TRIAL COURT WAS JUSTIFIED IN PASSING THE EX PARTE ORDER FOR INVENTORY AND INSPECTION UNDER ORDER 39 RULE 7 CIVIL P. C. AS THERE WAS A CASE FOR IMMINENT LOSS AND PREJUDICE TO BE SUFFERED BY THE PLAINTIFF. 2. THE COURT HELD THAT THE BOOKS OF ACCOUNTS WERE INTRINSICALLY LINKED TO THE DISPUTE BETWEEN THE PARTIES AND THEREFORE COULD BE CONSIDERED AS PART OF THE SUBJECT-MATTER OF THE SUIT.
Final Decision: THE COURT DISMISSED THE REVISION PETITION AND REFUSED TO STAY THE OPERATION OF THE IMPUGNED ORDER.
( 1 ) THIS Rule is directed against order No. 3 dated Aug. 20, 1071, passed by the learned Munsif. 4th Court, Alipore in Title Suit No. 281 of 1979 allowing an application under Order 39, Rule 7 read with Section 151, Civil P. C. The defendant is the petitioner in the instant Rule and the said application under Order 39, Rule 7 read with Section 151, Civil P. C. was made by the plaintiff opposite party Sri Mrinal Chandra Dutta before the learned Munsif. 4th Court, Alipore. It appears that the said plaintiff opposite party instituted the said Title Suit No. 281 of 1979 for declaration that properties described in Schedules A and B to the plaint were the properties of the partnership, for accounts for partnership firm known as "pioneer Pictures" at Premises No. 95, Rash Behari Avenue, and for permanent injunction restraining the defendant and his men from interfering with the peaceful possession of the Premises No. 95, Rash Behari Avenue and removal of books of accounts, papers and vouchers etc. and causing any obstruction to inspect the same records of the business. It further appears that in the said suit the plaintiff also made an application for interim injunction under Order 39, Rules 1 and 2, Civil P. C. and the plaintiff also made an application for appointment of a Receiver under Order 40, Civil P. C. It appears that all the said applications were taken up for hearing by the learned Munsif, 4th Court, Alipore and the learned Munsif on the said application for injunction under Order 39, Rules 1 and 2, Civil P. C. directed for an ad interim order restraining the defendants and his men and agents from disturbing and/or interfering with the plaintiff's peaceful possession and occupation of the disputed premises until the disposal of the said application for a temporary injunction. The learned Munsif upon consideration of the application under Order 39, Rule 7. Civil P. C. allowed the said application ex parte and directed that a learned Advocate-Commissioner should take an inventory of Books of Accounts of the partnership firm in suit and keep the documents and books in safe custody after proper sealing to prevent tampering. It was also directed that the learned Advocate-Commissioner should inspect the actual occupation and nature of possession of the southern side of the flat, namely, the 4th floor of the building comprising Priya Cinema. So far as the application for Receiver under Order 40, Rule 1 of the Civil P. C. is concerned, the learned Munsif refused to appoint any Receiver at that stage, without prejudice to the petitioner's right to move such an application subsequent to the report of the learned Commissioner to be appointed if so advised. As aforesaid, the defendant has moved this revisional application against the order passed by the learned Munsif on the said application under Order 39, Rule 7 of the Civil P. C. appointing a learned Advocate to cause inventory and inspection as stated hereinbefore.
( 2 ) MR. Dutt, the learned Counsel appearing for the petitioner contended at the first place that the pre-requisite for ex parte order directing for inventory and/or inspection under Order 39 Rule 7 Civil P. C. was not fulfilled and the impugned order is bad on the face of it on that score. Mr. Dutt submitted that under the provisions of Rule 7 Order 39 the Court may on the application of any party to a Suit and on such terms as it thinks fit make an order for detention, preservation or inspection of any property which is the subject-matter of such Suit or as to which any question may arise therein and for all or any of the aforesaid purposes authorise any person to enter upon or into any lands or building in the possession of any other party to such Suit. But it has been provided in Rule 8 of Order 39 Civil P. C. that such an application for an order under Rule 6 or Rule 7 may be made at any time after the institution of the Suit either by the Plaintiff or by the Defendant But Sub-rule (3
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
