The main legal point established in the judgment is that an application under Order 39, Rule 7 of the Code of Civil Procedure is maintainable when the right over the subject matter of the suit is in question, and any report obtained in the process should be treated for the limited purpose of injunction and not as evidence.

JUDGMENT :

Biswanath Rath,J

Petitioner filed this Civil Miscellaneous Petition assailing the order dated 15.3.2014 passed by the learned Civil Judge (Senior Division), Baleswar thereby rejecting the application at the instance of the plaintiff-petitioner under Order 39, Rule 7 of the Code of Civil Procedure, 1907.

2. The brief fact of the case is that the petitioner as plaintiff filed a suit for declaration of right, title and interest over the suit schedule land, correction of Record-of-Right and also for permanent injunction. The plaintiff’s case in the suit is that he is one of the sons out of five sons of his late father. One of the brothers of the petitioner, namely, Pradip had earlier filed O.S.No.111 of 1972-I for partition of their entire ancestral joint family properties impleading their father as one of the defendant. . The present petitioner was impleaded as defendant no.3 in the said suit. The said suit was decreed in terms of compromise on 12.2.1975. The petitioner therefore, submitted that the entire ancestral property has been partitioned in meets and bounds by allotting Ac.2.11 decimals of land as described in the plaint involved in the suit as ‘Ga’ schedule land. All the co-sharers have been given 1/4th equal share in ‘Ga’ schedule land i.e. Ac.2.11 decimals of land in favour of each. The petitioner alleged that even though he is in possession of his allotting share, but in the final settlement Record-of-Right, the area wrongly reflected as Ac.1.58 decimals in stead of Ac.2.11 decimals of land. It is in this view of the matter, the petitioner was constrained to file the suit involved in this writ petition. In the suit, the petitioner had also filed an application for injunction with a prayer to restrain the defendants thereby not disturb with the possession of the plaintiff. The trial court after hearing the parties and going through the records granted an order of status quo. It is alleged that while the matter stood thus, during current cyclone, namely, “Phylin” 30 numbers of Saguan trees and other trees got uprooted involving the suit property. Subsequently, the petitioner filed an application under Order 39, Rule 7 of the Code of Civil Procedure with a prayer to appoint a Commissioner for investigation and preservation of all trees.

3. Upon notice, application under Order 39, Rule 7 of the Code of Civil Procedure, defendant nos.1 to 3 filed a common objection making averment therein that since the suit has been posted for hearing , there is no necessity to appoint a Commissioner alleging further that the petitioner has already taken away the trees and the petitioner has filed this application with an intention to delay the proceeding. The defendants-opposite parties further submitted that there is no Teak trees on the described plot when the suit is pending for disposal and such application having been filed after the plaintiff already filed his deposition under Order 18, Rule 4 of the Code of Civil Procedure, which includes reference of the documents as exhibits. The petition of the petitioner was rejected on the ground that the hearing already commenced, there is no necessity for appointment of Commissioner. Further, when there is dispute regarding boundary and dispute concerning right, title and interest, this is no time to depute a Commissioner, which will ultimately disturb the trial in the proceeding. On the above premises, the defendant-opposite parties submitted that rejection of the application under Order 39, Rule 7 of the Code of Civil Procedure.

4. The matter was heard by the trial court and by order dated 15.3.2014 the trial court rejected the aforesaid application on the premises that such application has been filed when the suit was posted for settlement of issues. Further, on the premises that law is well settled that the order of inspection is not to be provided for collecting evidence for the parties and such investigation is necessary only when the parties are incapable of having knowl