The court has discretionary power to order local investigation commission for ascertaining the amount of mesne profit under Order XX Rule 12 and in the proceeding for mesne profit.

JUDGMENT

Ajoy Kumar Mukherjee, J. - Subject matter of challenge in the present application is order dated 5th July, 2018 passed by the learned Civil Judge (Senior Division) 1st Court at Alipore in Title Suit No. 53 of 2001. Petitioner contended that petitioner was the defendant No.1 in the suit for eviction filed by the opposite party no. 1 against present petitioner and opposite party no. 2 and 3. The opposite party no. 2 and 3 have been impleaded in present proceeding by the petitioner without seeking any relief against them. Said opposite party no. 1 filed a suit for eviction mesne profit and other relief against the present petitioner and opposite party no. 2 and 3 in the aforesaid suit. The opposite parties/ defendant contested the suit by filing written statement. Said suit was decreed vide judgment and decree dated 31st July 2008 and court below granted inter alia, the decree for recovery of possession of suit property from the petitioner and opposite party no. 2 and 3 and further the court below also granted decree of mesne profit against defendants from February 1994 till recovery of possession at the rate to be assessed and or calculated in a separate proceeding under Order XX Rule 12 of the Code of Civil Procedure 1908 (C.P.C.). The opposite party then filed execution case and petitioner and opposite party no. 2 and 3 preferred appeal against the said decree but during pendency of the said appeal the opposite party no. 1 handed over possession of the suit property through court baliff and as such the said appeal was dismissed by this court.

2. Opposite party no. 1 pursuant to the leave granted by the judgment and decree dated 29th April, 2014 initiated a separate proceeding for inquiry and ascertainment of mesne profit under the provisions of Order XX Rule 12 read with section 151 of the code. In the said proceeding opposite party no. 1 filed an application under Order XXVI Rule 9 of the code, praying for appointment of commissioner for the purpose of inquiry for assessing the fair rental value of the suit property for the period commencing from February 1994 till December, 2011 and submit report thereon before the court below. The petitioner contested the said application and learned court below by the impugned order was pleased to allow the said application filed by the opposite party no. 1 under Order XXVI Rule 9 of the code and one advocate has also been appointed as commissioner by that order.

3. Mr. Chatterjee learned counsel appearing on behalf of the petitioner submits that the court below ought not to have allowed the application made under Order XXVI Rule 9 of the code, in the facts and circumstances of the present case. Said application has been made to fish out evidence in the proceeding for adjudication of mesne profit to be made in terms of the aforesaid judgment and as such the application being in the nature of fishing out evidence is not maintainable in the eye of law and is liable to be dismissed. Moreover the advocate who is being appointed as commissioner may not possess the requisite expertise knowledge in the field of assessing fair rental value of immovable property. Practically the court below has not disclosed any reason why local investigation commission by an advocate commissioner is required for assessing the fair rental value for the concerned period. While passing the impugned order learned judge has in fact assisted the opposite party no. 1 in collecting evidence although the opposite party no. 1 could have and in fact have obtained evidence with regard to the fair rental value of the suit property. Accordingly petitioner has prayed for setting aside the order impugned. In this context petitioner relied upon AIR 1978 Cal 296

4. Mr. Choudhury learned counsel appearing on behalf of the opposite party submits that for the purpose of assessing fair rental value of the suit property for the said period, it is necessary for appointment of commissioner to assess the same upon local investigation