Back
2008 Supreme(Cal) 428
IN THE HIGH COURT AT CALCUTTA
Biswanath Somadder, J.
Harendra Prasad Shaw & Ors.
vs.
Bimal Naskar
C.O. No. 3390 of 2007
Decided On: April 23, 2008
Amitava Das, Uttam Kr. Bhattacharya for the petitioners;
Satyabrata Chakrabarti for the opposite party.
THE COURT CANNOT PASS AN ORDER UNDER ORDER 39 RULE 7 OF THE CODE OF CIVIL PROCEDURE OBLIVIOUS OF THE FACT THAT EVIDENCE HAS NOT ONLY BEEN ADDUCED BY THE PARTIES, BUT ALSO CLOSED BY THE LEARNED TRIAL COURT.
Headnote:
ORDER 39 RULE 7 OF THE CODE OF CIVIL PROCEDURE - INSPECTION OF SUBJECT MATTER - ORDER 39 RULE 7 CPC - ORDER PASSED BY THE COURT TO APPOINT AN ADVOCATE COMMISSIONER TO INSPECT THE SUBJECT MATTER OF THE SUIT AT A STAGE WHEN EVIDENCE HAD ALREADY BEEN LED BY THE PARTIES IS SET ASIDE AS IT WOULD AMOUNT TO MISCARRIAGE OF JUSTICE.
Fact of the Case:
THE PLAINTIFFS FILED A SUIT FOR RECOVERY OF KHAS POSSESSION AND DAMAGES. THE DEFENDANT FILED A WRITTEN STATEMENT AND AN APPLICATION UNDER ORDER 39 RULE 7 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE STATING THAT THE PLAINTIFFS HAVE SUFFICIENT ACCOMMODATION MORE THAN THEIR REQUIREMENT AND REQUESTED FOR INSPECTION OF THE PLAINTIFFS' PREMISES.
Finding of the Court:
THE COURT HELD THAT THE LEARNED TRIAL COURT ERRED IN ALLOWING THE APPLICATION UNDER ORDER 39 RULE 7 OF THE CODE OF CIVIL PROCEDURE AT A STAGE WHEN EVIDENCE HAD ALREADY BEEN LED BY THE PARTIES, AS IT WOULD ALLOW THE DEFENDANT TO PLUG THEIR EXISTING LOOPHOLES BY ALLOWING THE REPORT OF THE ADVOCATE COMMISSIONER TO BE PLACED ON RECORD BEFORE THE COURT AT THIS LATE STAGE.
Issues: WHETHER THE LEARNED TRIAL COURT ERRED IN ALLOWING THE APPLICATION UNDER ORDER 39 RULE 7 OF THE CODE OF CIVIL PROCEDURE AT A STAGE WHEN EVIDENCE HAD ALREADY BEEN LED BY THE PARTIES.
Ratio Decidendi: THE COURT RELIED ON ORDER 39 RULE 7 OF THE CODE OF CIVIL PROCEDURE, WHICH GIVES THE COURT WIDE DISCRETION TO MAKE AN ORDER FOR DETENTION, PRESERVATION, INSPECTION ETC. ON THE SUBJECT-MATTER OF SUIT, OR AS TO WHICH ANY QUESTION MAY ARISE THEREIN. HOWEVER, THE COURT HELD THAT THIS DISCRETION SHOULD NOT BE EXERCISED IN A MANNER THAT WOULD AMOUNT TO MISCARRIAGE OF JUSTICE, SUCH AS ALLOWING A PARTY TO IMPROVE THEIR DEFENCE AFTER EVIDENCE HAS BEEN CLOSED.
Final Decision: THE COURT SET ASIDE THE IMPUGNED ORDER AND DIRECTED THE LEARNED TRIAL COURT TO HEAR OUT AND DISPOSE OF THE SUIT PENDING SINCE THE LAST EIGHT YEARS AS EXPEDITIOUSLY AS POSSIBLE, PREFERABLY WITHIN A PERIOD OF SIX MONTHS, BUT NOT LATER THAN EIGHT MONTHS FROM THE DATE OF COMMUNICATION OF THIS ORDER.
1. Heard the learned Advocates appearing on behalf of the parties.
2. This is an application under Article 227 of the Constitution of India primarily directed against an order being order No. 106 dated 30th August, 2007 passed by the learned Civil Judge (Senior Division), 1st Court, Alipur, South 24-Parganas. By the order impugned, the learned Court below was pleased to allow an application filed by the defendant being, the opposite party herein, under Order 39 Rule 7 of the Code of Civil Procedure.
3. The facts of the case in brief as follows.
4. The plaintiffs filed the suit for recovery of khas possession and damages valued at Rs. 31,040/- sometime in the year 2000, with the following principal reliefs:
"(a) A decree for recovery of khas possession of the suit property after evicting the defendant therefrom;
(b) a decree for damages for the present Rs.29,000/- and any higher amount on proper ascertainment and payment of Court-fees;
(c) decree for mesne profits tentatively Rs. 100/- and any higher amount on proper ascertainment after payment of additional Court-fees;
(d) Order of temporary injunction;"
5. The defendant, being the tenant in respect of the suit property, filed a written statement, wherein the following statements have been made in paragraph 11:
"11. With regard to statements made in paragraph No.6 this defendant does not admit that the members of the family members of the plaintiffs as stated. This defendant assertively state that the plaintiff No.1 and his family members never reside in the suit house and they have all along residing at Bihar. This defendant does not admit that the friends and relatives of the plaintiffs do not pass single night with the plaintiffs due to lack of accommodation. This defendant denies that the sons and daughters of the plaintiffs are school goars of the father and mother of the plaintiffs have been suffering from various ailments. All the statements contrary to above are hereby denied and disputed."
6. In the application under Order 39 Rule 7 read with section 151 of the Code of Civil Procedure filed by the defendant, being the opposite party herein, it was inter alia stated by the defendant that the plaintiffs have sufficient accommodation more than their requirement. It has also been stated by the defendant that apart from the suit property the plaintiffs have two other flats and one four-storied building which are nearby the suit property. A part of another statement made in the said application by the defendant is that the plaintiffs have concealed their best piece of evidence to show that extent of accommodation and as such inspection was required to show the present accommodation and occupation of the plaintiffs.
7. The points for local inspection were enumerated in detail in the annexure• to the aforesaid application of the defendant.
8. The plaintiffs filed objection against the aforesaid application wherein it has been inter alia stated in paragraph 8 as follows:
"8. The plaintiffs state that it is the provisions of law that it is the due of the parties to prove their pleadings either by adducing evidence or by producing documents but they can not prove their pleading by collecting evidence through commission. If any party to the suit suppressed by material of facts then he or they would not get any relief from this learned Court for which there is no need to hold commission work. Moreover plaintiffs have instituted this suit in the year 2000. Defendant filed written statement but he did not disclose that beside the suit house plaintiffs have other accommodation. Subsequently defendant though incorporated some pleadings by way of amendment but at the time of cross-examination of PWs he did not filed any iota evidence in support of his pleading. On the other hand plaintiffs have categorically stated in paragraph-7 of the plaint of this suit that they are the owners of premises No 69/1/1, Chetla Road, PS Alipore, Calcutta-700027 wherein they have been carrying on their busine
