JUDGMENT :

SUBHASIS DASGUPTA, J.

1. The subject matter of challenge in this case is against the rejection of a prayer for local inspection under Order 39 Rule 7 of the Code of Civil Procedure.

2. According to Mr. Buddhadeb Ghosal, learned advocate representing the petitioner/plaintiff, an attempt was undertaken by defendants intending to interfere with the easy movement of the plaintiff in repairing the out side wall of the building, by putting a padlock in the entrance gate in respect of the ‘C’ schedule property, which is commonly enjoyed by both the parties to this case. Reference was drawn by Mr. Ghosal to paragraph 12 of copy of plaint to that effect.

3. Mr. Ghosal further submitted that there had been an ad interim order of injunction granted, restraining the defendants from obstructing the plaintiffs’ repairing work in the ‘A’ schedule property by availing the ‘C’ schedule strip of land.

4. Since real state of affairs, existing with respect to the ‘C’ schedule land intervening ‘A’ and ‘B’ schedule property, there arose the necessity to propose for local inspection under Order 39 Rule 7 of the Code of Civil Procedure, which the court below without truly adverting the purport of the facts disclosed in the petition, together with the schedule of the points, sought to be inspected, had most illegally rejected, upon improperly exercising the authority vested to court below, Mr. Ghosal argued.

5. It was thus proposed by Mr. Ghosal that unless such local inspection was allowed to be held, there may not be fair adjudication of the prayer for injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure.

6. Incidentally, it was submitted by Mr. Ghosal that when the court below was satisfied with the prima facie case, presented at the time of granting ad interim order of injunction, together with the urgency of the circumstances, the prayer for local inspection ought not to have been rejected, merely on an imaginary ground that it would fish out evidence ultimately.

7. Attention of the court was drawn further by Mr. Ghosal to the written statement, submitted by the defendants containing a counter claim, wherein defendants themselves had proposed for holding local inspection of the subject property to bring the actual topography before the court. It was thus proposed by the Mr. Ghosal that when defendants themselves proposed for local inspection, there would not be any prejudice caused to defendants, merely upon holding the local inspection on the prayer of the plaintiff/petitioner.

8. Per contra, Mr. Probal Mukherjee, learned senior advocate, representing opposite parties/defendants disputing with the submission of Mr. Ghosal, replied that the strip of land running north to south, as per agreement executed between the parties, would be utilised by both the parties for temporary staging scaffolding etc., for plastering, repairing and maintenance of respective peripheral walls of both the parties, and such strip of land, as depicted in schedule ‘C’, intervening ‘A’ and ‘B’ schedule property in any case, could not be construed to be a common passage, upon narrowly interpreting the agreement, executed on 17th November, 2000.

9. Mr. Mukherjee, putting much emphasis upon such agreement, dated 17th November, 2000 submitted that strip of land, marked as ‘C’ schedule in any case, could not be construed to be a common passage.

10. Thus, the existence of ‘C’ scheduled land measuring about 2 feet wide strip of land was not disputed by the Mr. Mukherjee. The ‘C’ schedule property is strip of land intervening ‘A’ and ‘B’ schedule property, as disclosed in the plaint.

11. It was argued by Mr. Mukherjee that when existence of 2 feet wide strip of land, depicted in ‘C’ schedule was not at all disputed by the defendants, there left no necessity for holding local inspection. More so, the contradictory prayers made in the plaint, would not, however, justify holding of local inspection of the subject property in any manner whatsoever.

12. Supporting the