An ex parte order of local inspection under Order 39 Rule 7 CPC must be passed in accordance with the requirements of Order 39 Rule 8(3) CPC, which mandates notice to be given unless the object of the order would be defeated by the delay.

( 1 ) THE present revisional application is directed against a part of Order No. 2 dated 25th January, 1995 passed by the learned Munsif, 4th Court, Sealdah in Title Suit No. 25 of 1995. The learned Advocate appearing on behalf of the petitioner undertakes before this Court that he will file the certified copy of the impugned order as soon as it is obtained and the said undertaking is hereby recorded.

( 2 ) THE present revisional application is taken up for hearing on contest.

( 3 ) BY the impugned order an ex parte order of local inspection was passed under Order 39 rule 7 of the Code of Civil Procedure. 1976 Amendment of the Code of Civil Procedure has brought about a sea-change about the rigour of ex parte orders under Order 39 Rule 7 of the Code of Civil Procedure which was not previously there under the unamended provision of Order 39 Rule 8 of the Code of Civil Procedure. Order 39 Rule 8 of the Code of Civil Procedure was there in the original body of the Code before amendment in cryptic form. But after amendment Clause (3) was superadded to Order 39 rule 8 of the Code of Civil Procedure which provides that notice is the normal rule save and except in exceptional situation where it appears that the object of making such order would be defeated by the delay. The said expression is almost couched in similar language to that of Order 39 Rule 3 of the Code of Civil Procedure where also notice is the usual rule and ex parte order is capable of being passed only when the object of the same would be defeated by the delay.

( 4 ) THE learned Advocate appearing on behalf of the opposite party has tried to impress upon this Court by making a reference to a decision by pointing out that mere omission to mention that the object of making such order would be defeated will not ipso facto invalidate the order. There is no doubt that even if where there is any mention of the same or not that shall have no germane effect. The justification has to be resonant with reason about the exception where such petition can be allowed ex parte. In view of the parity of language of Order 39 Rule 3 of the Code of Civil Procedure the amended provision of Order 39 rule 8 (3) of the Code of Civil Procedure should be read in similar way in similar terms. The ratio of law as expounded by the apex Court in D. R. Chowla's case reported in (1993) SCC 161 will squarely apply. The impugned order as read does neither disclose any substance nor any iota of material from which any reason can be deciphered as to the formation of the opinion of the Court below about the delay defeating the purpose of the petition. As such, in order to attract exception by way of ex parte order the same is required to be a speaking order in true sense of the term. The order impugned manifestly is a non-speaking order. The learned Munsif has failed to take note of the missing link between the unamended provision of Order 39 rule 8 of the Code of Civil Procedure introduced by 1976 amendment. The said oversight has misdirected the learned Munsif in exercise of his jurisdiction and on that score alone the order seems to be vitiated by patent jurisdictional infirmity. The argument of the learned Advocate appearing on behalf of the opposite party that error on fact and also error on law is not open to be corrected by the revisional court falls to the ground as it is squarely a case of mischief of jurisdictional error simpliciter.

( 5 ) MR. Mukherjee, learned Advocate appearing on behalf of the petitioner, has also submitted that since the inspection sought to be made about the alleged culvert on certain Dag numbers it has got to be relayed properly for which local inspection is necessary and any work of ordinary commission will not suffice the purpose. According to Mr. Mukherjee the local investigation can be done only after framing of the issues and not before in view of the mandate cast by the Code of Civil Procedure.

( 6 ) ANOTHER point which has been attempted to