The court has the discretion to make an order for inspection of the property in dispute under Order 39, Rule 7, CPC, and such discretion is to be exercised judicially and depends on the facts and circumstances of each case.

JUDGMENT :

S.C. Mohapatra, J. - Notice of admission having been issued, opposite party has entered appearance. This matter was listed for orders regarding consideration of the report of the trial Court in respect of non submission of report by the lawyers appointed to submit the report. Since, short question involved is whether appointment of the lawyer to inspect the spot and submit the report is exercise of jurisdiction with material irregularity. I heard the Civil Revision on merits with consent of parties to avoid further delay in the proceeding.

2. In a suit for eviction of the Petitioners from the suit premises ad interim temporary injunction was issued again or the Petitioners restraining them from making any construction. While the question of making the orders final is pending after objection by the Petitioners, opposite party filed an application that Petitioners are to be penalised for violation of the order of injunction.

3. Opposite party filed an application for local inspection to avoid further controversy with regard to the number of rooms existing on the suit premises with nature and chatacter of the same with approximate age of the rooms and the structure standing with a rough sketch map indicating location of the rooms and other structures and trees existing thereon. This was objected to by Petitioners on the ground that after getting interim injunction opposite party has filed the petition to delay disposal of the injunction matter and the petition has been filed with object of collecting evidence not only for the injunction matter, but also for the suit itself since Petitioner has no knowledge of the nature of promises for which suit has been filed.

4. After hearing parties and relying upon a decision of this Court reported in (1989) 31 O.J.D. 135 Subal Kumar Dey v. Puma Chandra Giri and Ors. trial Court appointed a lawyer to have local inspection in exercise of power under Order 39, Rule 7, CPC to report about the number of rooms existing over the suit property and the description of the rooms including the wall, roof and floor and about the approximate area of the rooms and the other structures standing thereon and to submit a rough sketch map of the suit property showing the location of the rooms, other structures and trees existing thereon.

5. Mr. Bidhayak Patnaik, learned Counsel for the Petitioners submitted that trial Court not having considered whether by local inspection evidence is sought to be collected, has exercised jurisdiction with material irregularity. He relied upon the decision reported in Bijay Kumar Jena and Another Vs. Dussasan ' Surendra Khuntia and Others. and submitted that Plaintiff having no knowledge of the suit premises, trial Court ought to have held that appointment of a Lawyer for local inspection would have the effect of finding out materials for the Plaintiff. In case the disputed premises would have been open land where the party seeking assistance of the Court could have inspected the same himself or through his agents or witnesses would have been available to give evidence about the situation of the land and in respect of the nature of dispute involved, Mr. Patnaik would have been justified in his submission that local inspection by Court in exercise of power under Order 39, Rule 7, Code of Civil Procedure, would not be justified.

6. Under Order 39, Rule 7, Code of Civil Procedure, Court has discretion to make an order for inspection of the property in dispute. There can be no doubt that such discretion is to be judicially exercised and it would depend on the facts and circumstances of each case to consider whether such discretion is to be in favour of local inspection. It is to be remembered that such power is not to be exercised lightly on mere asking for the same. It is to be exercised by the Court when occasion so demands and when such inspection is necessary for proper appreciation and adjudication of the dispute for which local inspection is sought for.

7. In the present