JUDGMENT :

Prasenjit Biswas, J.

1. The present revisional application is directed against a portion of the order dated 1st July, 2011 in connection with Title Suit No. 208 of 2011 passed by the Learned Civil Judge (Junior Division), Haldia. By passing the impugned order application filed on behalf of the plaintiffs under Order 39 Rule 7 of the Code of Civil Procedure was allowed.

2. The plaintiffs/opposite parties filed a suit in respect of the suit property for declaration of title and permanent injunction. In that suit an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure was filed at the behest of the plaintiffs and ex-parte ad interim order in form of status quo as regards nature, character and possession in respect of ‘Ka’ scheduled property as mentioned in the plaint was passed. The plaintiffs also filed an application under Order 39 Rule 7 of the Code of Civil Procedure with a prayer for appointment of commissioner for inspection of the suit property which was allowed by the Trial Court without serving a notice to the other side.

3. Learned Counsel on behalf of the petitioner submitted that the present petitioner received a notice in or around the 2nd week of July, 2012 from which he came to know that an order of status quo had been passed on an application filed by the plaintiffs/opposite parties (herein). It is further submitted by the learned Counsel that the present petitioner came to learn that another application under Order 39 Rule 7 of the Code of Civil Procedure had been filed by the plaintiffs and the said application was allowed by the learned Trial Court and a commissioner had been appointed who carried out the inspection work and filed a report.

4. Order 39 Rule 7 of the Code empowers the Court to pass an order for inspection of the property which is the subject matter of the suit or as to which any question may arise on an application made by any of the parties to the suit.

5. Sub-clause 3 of Order 39 Rule 8 of the Code entails that:-

“Before making an order under Rule 6 or 7 on an application made for the purpose, the Court shall, except where it appears that the object of making such order would be defeated by the delay, direct notice thereof to be given to the opposite party”

6. Clause 3 of Order 39 Rule 8 of the Code of Civil Procedure was introduced and incorporated after amendment of the Code of Civil Procedure. The amendment as it stands starts with a prefix that before making an order under Rule 6 or 7 when it appears that an object of making such order would be defeated by delay, the Court can issue such ex-parte interim order. The added sub-Rule (3) of the Order 8, Rule 39 makes the position clear limiting the power of the Court to make an ex-parte order where it appears to the Court that object of making the order would be defeated by delay by directing notice.

7. The impugned order was passed ex-parte by the Trial Court under Order 39 Rule 7 and the same has been completed in derogation of the right of the present petitioner to notice.

8. It is profitable to quote the observation of this Court in case of Electrosteel Castings Ltd Vs. Apurba Kumar Dewan & Ors. reported in 1995(2) CLJ page 66 where this Court had occasioned to deal with the self same issue. The extracts of which are quoted hereunder:

 “5. Another point which has been attempted to be canvassed before this Court is about maintainability of the revision arising out of an order passed in Order 39 Rule 7 of the Code of Civil Procedure and the same has been attempted to be set at rest by Mr. Mukherjee by making reference to a Division Bench judgment of this Court in the case of Institution of Engineers v. Bishnupada Bag. The other points agitated by the respective parties pale into insignificance as according to the considered view of this Court after amendment was introduced in 1976 with regard to Order 39 Rule 8 of the Code of Civil Procedure, no ex parte order is capable of being passed without substantive compliance of Cla