1. Order no. 38 dated December 16, 2009 passed by the learned Judge, 6th Bench, Small Causes Court at Calcutta is under challenge in this application under Article 227 of the Constitution of India at the instance of the defendant in Ejectment Suit No. 55 of 2007. By the impugned order, the defendant's petition under Order 39 Rule 7, Civil Procedure Code (hereafter the Code) has been rejected.

2. Perusal of the impugned order reveals that the learned Judge on the application of the plaintiff appointed an Advocate Commissioner. He was required to submit a report on the following points:

'i) The present accommodation of the plaintiff in the suit premises No.124, Mahatma Gandhi Road, Kolkata-700007 P.S. Jorasanko, measurement and mode of user. ii) The accommodation of the defendant in the suit premises measurement and mode of user. iii) Such other point or points to which the learned Advocates of the parties may draw the attention of the Ld. Advocate-Commissioner.'

The Advocate Commissioner conducted local inspection upon notice to the parties and filed her report in Court. Copy thereof was furnished to the parties.

3. ON perusal of such report, the defendant found it to be inc