The court clarified that a defendant must specifically deny allegations in a plaint to pursue an application for local inspection under Order 39 Rule 7, emphasizing the significance of directly challenging claims made against them.

1. This revisional application has been filed challenging an order dated 5th September, 2024 passed by the learned Court of Civil Judge (Senior Division), 2nd Court, Alipore, South 24 Parganas in Title Suit No.249 of 2018 whereby the application filed under Order 39 Rule 7 of the Code of Civil Procedure has been rejected as filed by the present petitioner being the defendant in this case. The suit was filed by the present opposite party/plaintiff against the present petitioner for recovery of Khas possession in respect of B Schedule property by evicting the defendant therefrom and also for a decree for mesne profit @ Rs.30,000/- tentatively from 3rd January, 2018 till the date of recovery. The present petitioner being the defendant entered appearance and filed the written statement, and averred in para 17 about dismissal of a previous sheet and further the schedule will be inspected by holding local inspection.

2. It is further contended by filing the written statement in paragraph 17.

“17. That as the description of possession had not been described, the case was dismissed which was due to wrong advise, but not for the fault of the plaintiff in T.S. no.44 of 2008 defendant in this case. This defendant is describing his possession at the schedule to this written statement which will be proved by local inspection to be held of the cost of this defendant during the pendency of this suit.”

3. Learned advocate appearing on behalf of the petitioner argued that the learned Court misinterpreted the provision under Order 39 Rule 7 of the Code and came to a finding that the defendant by filing the petition is intending to fetch the evidence on record.

4. Furthermore, it is argued that since the property has been described in the ‘B’ schedule of the plaint, it is necessary for the defendant being the petitioner herein to controvert the same and to establish his defense case by adducing cogent evidence and there is no other provision other than Order 39 Rule 7 of the Code under which the inspection of the suit property can be held or the measurement of the suit property can be considered.

5. In order to substantiate his contention, the learned advocate has relied upon a decision reported in 2009 (3) ICC Satyanarayan Dass & Anr. Vs. Prabhunath Keshri (Shaw) & Anr.

6. He has further relied upon a decision reported in 1995 SCC Online Cal 206 in the case of Amar Singh Saini Vs. Rup Chand Das & Anr. The other decision has cited by the learned advocate reported in 2001 SCC Online Cal 491 in the case of Santosh Kumar Saha Vs. Gita Paul & Ors.

7. It is further submitted that prior to filing of this application under Order 39 Rule 7, another application was filed on their behalf, which was rejected on account of improper description of the property and subsequently, an amendment application was filed on their behalf, which was allowed and thereafter, this application has been filed and the suit has come to a stge where the evidence of DW 1 has commenced.

8. Learned advocate appearing on behalf of the opposite party raises vehement objection and submits that the present defendant being a trespasser has dispossessed the present plaintiff for which the suit has been filed for recovery of possession.

9. It is further submitted that the defendant in his written statement in the Schedule has accepted that he is in possession of the same suit property in respect of which the suit has been filed.

10. He further argued that the submission of the learned advocate appearing for the petitioner that there is no other provision excepting under Order 39 Rule 7 is disputed as there is another provision under Order 26 Rule 9 of the Code of Civil Procedure but the present petitioner’s case is not com