Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 445

BISWAROOP CHOWDHURY
Krishna Sharma – Appellant
Versus
Maya Mukherjee – Respondent

Advocates Appeared:
For the Petitioner: Mr. Animesh Paul.
For the Opposite Parties : Mr. Souri Ghosal, Mr. Probhat Kr. Singh.

Judgement Key Points

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What is the scope of a court's power under Order 39 Rule 7 and 8 CPC to detention, preservation or inspection of the suit property and to authorize entry, sampling, observation or experiments for obtaining full information or evidence?

What are the circumstances under which an Advocate Commissioner can be appointed for local inspection of the suit property, including which points in the schedule must be inspected and whether certain points can be omitted or must be included?

What is the revisional court's approach to modifying an order under Order 39 Rule 7 and 8 CPC to ensure preservation/inspection of property, and when can all points in the schedule be ordered for inspection?

JUDGMENT :

Biswaroop Chowdhury, J.

1. The petitioner before this Court is a plaintiff in a suit for declaration and permanent injunction and is aggrieved by order dated 15-12-2021 passed by the Learned Civil Judge (Junior Division) 5th Court at Howrah in Title Suit No. 689 of 2020 of not allowing part of the prayer made in an application under Order 39 Rule 7 and 8 read with Section 151 of the Code of Civil Procedure. The petitioner being aggrieved by the Order passed by the Learned Court below has come up with the instant application.

2. The case of the petitioner/plaintiff may be summed up thus :

1. The petitioner has filed a suit for declaration and permanent injunction being Title Suit No. 689 of 2020 against the opposite parties in the Court of the Learned Civil Judge (Junior Division) 5th Court at Howrah praying for following reliefs:

(a) A decree for declaration that the plaintiff is the owner of the ‘A’ schedule suit property along with right of common Methor passage and common passage, described in the schedule ‘C’ Suit property.

(b) A decree for further declaration that the defendant no. 1,2 and 2(A) to 2(D) have no right to make construction encroaching upon ‘C’ schedule prope

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2023 Supreme(Cal) 445

BISWAROOP CHOWDHURYKrishna Sharma – AppellantVersusMaya Mukherjee – Respondent

What is the scope of a court's power under Order 39 Rule 7 and 8 CPC to detention, preservation or inspection of the suit property and to authorize entry, sampling, observation or experiments for obtaining full information or evidence?

What are the circumstances under which an Advocate Commissioner can be appointed for local inspection of the suit property, including which points in the schedule must be inspected and whether certain points can be omitted or must be included?

What is the revisional court's approach to modifying an order under Order 39 Rule 7 and 8 CPC to ensure preservation/inspection of property, and when can all points in the schedule be ordered for inspection?

BISWAROOP CHOWDHURY
Krishna Sharma – Appellant
Versus
Maya Mukherjee – Respondent