Smt. Krishna Sharma vs Smt. Maya Mukherjee & Ors
2023 Latest Caselaw 3371 Cal

                                       1


                      IN THE HIGH COURT AT CALCUTTA
                          Civil Revisional Jurisdiction
                                 Appellate Side



                                   Present:

                 The Hon'ble Justice Biswaroop Chowdhury


                               C.O. 162 of 2022
                             Smt. Krishna Sharma

                                   VERSUS

                          Smt. Maya Mukherjee & Ors.




For the petitioner:                        Mr. Animesh Paul, Adv.

                                           Mr. Souri Ghosal, Adv.
For the opposite party Nos. 1 and 2:       Mr. Probhat Kr. Singh, Adv.



Judgment on: May 12, 2023

Biswaroop Chowdhury,J:


      The petitioner before this Court is a plaintiff in a suit for

declaration and permanent injunction and is aggrieved by order

dated 15-12-2021 passed by the Learned Civil Judge (Junior

Division) 5th Court at Howrah in Title Suit No. 689 of 2020 of not

allowing part of the prayer made in an application under Order 39

Rule 7 and 8 read with Section 151 of the Code of Civil Procedure.
                                     2


The petitioner being aggrieved by the Order passed by the Learned

Court below has come up with the instant application.


     The case of the petitioner/plaintiff may be summed up thus:


     1.

The petitioner has filed a suit for declaration and

permanent injunction being Title Suit No. 689 of 2020

against the opposite parties in the Court of the Learned

Civil Judge (Junior Division) 5th Court at Howrah praying

for following reliefs:

a) A decree for declaration that the plaintiff is the owner of

the 'A' schedule suit property along with right of common

Methor passage and common passage, described in the

schedule 'C' Suit property.

b) A decree for further declaration that the defendant no.

1,2 and 2(A) to 2(D) have no right to make construction

encroaching upon 'C' schedule property and without

leaving mandatory side space on four sides in the 'B'

schedule property.

c) A decree for permanent injunction restraining the

defendant no 1, 2 and 2(A) to (D) from making

construction encroaching upon 'C' schedule property and

without leaving side space on all the four sides of the 'B'

schedule suit property.

d) An order for interim injunction in the form of prayer ©

above.

e) Leave under Order 2 Rule 2 of Civil Procedure Code

1908.

f) A decree for all costs of the suit.

g) A decree for any other relief or reliefs to which the

plaintiff is entitled both in law and in equity.

2. The petitioner along with the suit has filed an application

under Order 39 Rule 1 and 2 read with Section 151 of the

Code of Civil Procedure 1908. The Learned Trial Court upon

considering the said application was pleased to pass an ad-

interim order of injunction only to the extent of restraining

the opposite party Nos. 1, 2, 2(A) to (D) their men and

agents from making any construction over the 'C' Schedule

common methor passage without due process of law until

05-10-2020.

3. The petitioner being aggrieved by the Order dated 5-09-

2020 passed by the Learned Trial Court in not granting an

ad-interim order of injunction in respect of the 'B' schedule

property, filed an appeal being Misc Appeal No-53 of 2020

in the Court of Learned District Judge at Howrah.

4. By a judgment dated 09.04.2021 the Learned District Judge

Howrah was pleased to allow the said appeal on contest

thereby setting aside the Order dated 05.09.2020 passed by

the Learned Trial Court below and further passing an order

of injunction directing both the parties to the suit to

maintain status-quo in respect of nature, character and

possession of the suit properties ("B" and "C" schedule) and

not to change the nature and character of the said

properties till disposal of the application under Order 39

Rule 1 and 2 of the Code of Civil Procedure.

5. The opposite party No. 1, 2 and 2A to 2D entered

appearance in the said suit and filed written statement

coupled with counter claim, written objection to the

application of injunction filed by the petitioner herein and

an application for injunction under Order 39 Rule 1 and 2

of the Code of Civil Procedure.

6. By the counter claim the opposite party Nos. 1, 2 and 2(A)

to 2(D) herein have prayed for following reliefs:

a) A decree for permanent injunction against the plaintiff

restraining her as well as her men and agents from

creating any obstruction to the

counter/claimant/defendant no-1 in the matter of

making construction over the schedule below property in

accordance with the sanctioned plan.

b) A further decree for injunction against the plaintiff from

misusing the Order dated 5.09.2020 passed by the

Learned Court in suit, which is in connection to the 'C'

schedule property to the suit/plaint.

c) Any other relief/reliefs which the counter claimant is

entitled in Law and equity.

7. The application for injunction filed by the petitioner and

also by opposite party No, 1, 2 and 2(A) to 2(D) are pending

for disposal.

8. The petitioner in the trial Court filed an application under

Order 39, Rule 7 and 8 read with Section 151 of the Code of

Civil Procedure 1908 in the said suit inter-alia praying for

appointment of the Learned Advocate Commissioner to hold

the local inspection as per the schedule maintaining

proposal points in the said application. By the said

application, the petitioner contended that the opposite party

Nos. 1,2 and 2(A) to (D) in spite of being well aware of the

order of ad-interim injunction passed by the Learned

District Judge at Howrah in aforesaid Misc. Appeal No-53 of

2020 are making illegal and unauthorized construction over

the suit property in collusion with the men and agents of

the Howrah Municipal Corporation and in spite of

continuous complaints the authorities of the Corporation

are not taking any steps against the said construction and

with a prayer for appointment of an Advocate Commissioner

for preservation detention and inspection of the suit

property and also for bringing clear picture and actual

topography of the suit property for proper and effective

adjudication of issues involved in the suit.

9. The application filed by the petitioner under Order 39 Rule

7 and 8 read with Section 151 of the Code of Civil Procedure

1908, was heard by the Learned Trial Court, and by an

Order dated 15-12-2021theLearned Trial Court was pleased

to allow the said application by appointing a Learned

Advocate as Commissioner for holding local inspection of

the suit property in terms of the points mentioned in the

schedule of the application filed by the petitioner herein

excepting point (v) and (vi).

10. The petitioner being aggrieved by Order dated 15-12-

2021 passed by the Learned Trial Court has come up with

the instant application.

It is contended by the petitioner/plaintiff that the Learned

Trial Judge acted illegally and with material irregularity in not

allowing the local inspection on the points (v) and (vi)

mentioned in the schedule of the said application filed by the

petitioner herein inasmuch as the inspection on the said

points are very much essential for proper and effective

adjudication of the dispute and/or issue involved in the suit. It

is further contended that the Learned Trial Judge in the Court

below failed to consider the nature of the reliefs as claimed in

the plaint by the petitioner herein and in the counter claim by

the opposite party Nos. 1, 2 and 2(A) to (D) herein and the

common issues raised by the parties relating to the

construction on the suit property very well necessitates and

justifies allowing of local inspection of the entire points

including point nos. (v) and (vi) as mentioned in the schedule

of the application for inspection. It is also contended that the

Learned Trial Judge in the Court below failed to consider the

nature of the reliefs as claimed in the plaint by the petitioner

herein and in the counter claim by the opposite party Nos. 1, 2

and 2(A) to (D) herein and the common issues raised by the

parties relating to the construction on the suit property very

well necessitates and justifies allowing of local inspection on

the entire points including points nos. (v) and (vi) as

mentioned in the schedule of the application for inspection

filed by the petitioner herein.

Pursuant to the filing of this application notice was

issued upon the opposite parties. Opposite party no. 1, and 2A

to 2D entered appearance and contested the application.

Opposite party no-3 did not enter appearance to contest the

case in spite service of notice.

Heard Learned Advocate for the petitioner and Learned

Advocate for the opposite party no 1 and 2A to 2D perused the

petition filed and materials on record.

Learned Advocate for the petitioner submits that the

Learned Trial Court erred in law in not allowing ground nos.

(v) and (vi) as mentioned in the schedule of the application for

inspection filed by the petitioner herein. Learned Advocate

further submits that holding inspection on ground (v) and (vi)

of the application under Order 39 Rule 7 of the Code of Civil

Procedure is very much necessary for adjudication of the

dispute in the suit. Learned Advocate also submits that the

Learned Trial Court ought to have allowed the grounds nos. (v)

and (vi) of the application when there is allegation of violation

of the order of status-quo with regard to the suit property

passed by the Appellate Court. Learned Advocate for the

Petitioner relies upon the following decisions.

Sisir Saha and Ors

Vs

Baby Begum @ Mehera Begum and Anr.

Reported in 2011(1) CLJ - Cal - P - 54.

Learned Advocate appearing for the opposite party no. 1 and

2A to 2D submits that there is no error in the Order passed by the

Learned Trial Court. Learned Advocate further submits that there is

no specific allegation against his clients in the plaint. Learned

Advocate draws attention to Para - 8 of the plaint and submits that

the plaintiff/petitioner has alleged that the private defendants are

trying to make illegal construction and thus the allegation is not

specific.

Upon perusing the petition under Order 39 Rule 7 and

considering the impugned order passed by the Learned Court below

this Court is of the view that in order to consider the legality of the

order passed by the Learned Court below, first of all it is necessary

to consider the provisions contained in Order 39 Rule 7 of the Code

of Civil Procedure. Rule 7 of Order 39 of the Code of Civil Procedure

provides as follows:

Detention, preservation, inspection e.t.c. of subject matter of

suit.

1) The Court may on the application of any party to a suit and

on such terms as it thinks fit

a) make on Order for the detention, preservation or

inspection of any property which is the subject - matter

of such suit, or as to which any question may arise

therein.

b) for all or any of the purposes aforesaid authorizes any

person to enter upon or into any land or building in the

possession of any other party to such suit and

c) for all or any of the purposes aforesaid authorize any

samples to be taken or any observation to be made or

experiment to be tried which may seem necessary or

expedient for the purpose of obtaining full information or

evidence.

2) The provisions as to execution of process shall apply

mutatis mutandis to persons authorized to inter under this

rule.

Thus upon plain reading of the provision contained in Order

39 Rule 7(1) of the Code of Civil Procedure it will appear that the

Court on an application by any party for the purpose of

preservation and inspection of subject matter of suit may authorize

any person to enter upon into any land or building in possession of

any other party to such suit. It will further appear that by such

authorization order any samples may be taken or any observation

made for the purpose of obtaining full information or evidence.

Hence it is clear that although commission may not be issued for

fishing out evidence on behalf of any party but collection of evidence

cannot be totally discarded to preserve the suit property upon

getting a picture of the condition of suit property.

In the case of Sisir Saha and Ors Vs Baby Begum @ Mehera

Begum and Anr (supra) a learned Single Judge of this Court

observed as follows:

'By way of rejecting the application under reference the

Learned Court below wrongfully directed the petitioners to proof the

case by way of adducing evidence with regard to the existence of a

public path on the plot of land in question which can only be

ascertained by way of taking measurement of the plot of land in

question and the plot adjacent thereto.'

This Court further made the following observation:

'I do not find any substance in the submissions made on

behalf of the plaintiffs/opposite parties that a disputed question of

facts with regard to existence of a path way on a particular plot of

land or to a plot of land adjacent thereto can be ascertained without

taking physical measurement of the same by appointing

Commissioner. I do not accept the submissions made on behalf of

the plaintiffs/opposite parties that it is an attempt on the part of

the petitioners for fishing out evidence. I do not find that the

decision of Institution of Engineers (Supra) has any manner of

application in this case in view of the distinguishable facts and

circumstances of that case. In that case the issue was alleged

forgery with regard to the proxy vote in connection with an election.'

In the case of Kalandi Swain Vs Braja Kishore reported in

(1980) ILR. I Ori P-98 the Hon'ble Court observed that provision for

inspection in Rule 7 has been enacted mostly for the purpose of

keeping on record the existing condition of the property so that if

the same is subjected later on to any change, determination or

mischief by any of the parties or by any other agency or reason that

can be known by the Court if and when required.

In the case of Allahabad Bank Vs Saurendra Nath Shaw

reported in AIR - 1997. Cal 89 (DB) Hon'ble Division Bench of this

Court observed that ascertaining the condition of demised premises

by Court inspection falls within the purview of Order XXXIX Rule -

7 and not Order XXVI Rule - 9.

In the instant matter Learned Appellate Court while disposing

an Appeal arising out of an Order passed in an application under

Order 39 Rule 1 and 2 of the Code of Civil Procedure was pleased to

direct both the parties to the suit to maintain status-quo in respect

of nature character and possession of the suit properties ("B" and

"C" schedule) and not to change the nature and character of the

said properties till disposal of the application under Order 39 Rule

1 and 2 of the C.P.C. In the application under Order 39 Rule 7 of

the Code of Civil Procedure the petitioner/plaintiff alleged that in

spite of injunction order passed by the trial Court and appellate

Court the defendants by gross violation of the said orders as well as

the Building Rules of the Howrah Municipal Corporation are

making such illegal and unauthorized construction over the said

property in collusion with the men and agents of Howrah Municipal

Corporation. It was contended that for preservation detention and

inspection of suit property and for bringing clear picture and actual

topography of suit property appointment of Advocate Commissioner

is necessary.

The following points were submitted by the petitioner for

inspection by Advocate commissioner.

i) To go to the locale and to draw the rough sketch map of

the schedule "A", "B" and "C" mentioned suit properties

of the plaint as well as injunction application.

ii) To note that the nature character of the schedule

mentioned suit properties of the plaint as well as

injunction application.

iii) To note that whether there is any construction work is

going at and over the schedule "B" and "C" mentioned

suit property of the plaint as well as injunction

application or not? If any to note in what extent?

iv) To note that whether there is any building materials

gathered in the schedule "B" and "C" mentioned suit

property of the plaint as well as injunction application or

not?

v) To note that whether the defendants are making

construction over the "B" schedule mentioned property

by leaving 4 ft wide mandatory side space in the four side

of the "B" schedule mentioned property or not?

vi) To note and take lineal measurement how many gape is

prevailing between the schedule "A" and "B" mentioned

suit property at present?

vii) To note the other locale feature or features at the time of

holding commission work if any.

It further appears that no affidavit of objection was filed to the

petition under Order 39 Rule 7 of the Code of Civil Procedure by the

opposite parties.

Learned Trial Court while allowing the prayer for appointment

of Advocate Commissioner directed inspection by the Learned

Commissioner to points of the schedule as submitted by the

petitioner, except point no (v) and (vi) on the ground that allowing

the same will tantamount to fishing out of evidence.

Upon considering the application under Order 39 Rule 7 of the

Code of Civil Procedure filed by the plaintiff/petitioner it will appear

that the petitioner alleged violation of the order of injunction of the

Learned Trial Court and appellate Court with regard to "B" and "C"

schedule properties and carrying out construction in violation of

Building Rules. Thus for the purpose of preservation of suit

property it is necessary that local inspection should be carried out

with regard to point (i) to (vi) of the schedule as submitted by the

petitioner. As points (i) to (vi) are inter-related inspection should be

carried out on all the points mentioned in the schedule, and none of

the points can be ignored. As Order 39 Rule 7 of the Code of Civil

Procedure has empowered the Court to make an order for detention

preservation or inspection of any property which is the subject

matter of such suit, and for the said purpose authorize any samples

to be taken or any observation to be made or experiment to be tried

which may seem necessary or expedient for the purpose of

obtaining full information or evidence, such order when necessary

for preservation or inspection of suit property should not be refused

on the ground that it will amount to fishing out of evidence for a

party. Thus the order of Learned Trial Court cannot be sustained

without modification.

Hence this Revisional Application stands disposed. Order

dated 15/12/2021 passed by Learned Civil Judge Junior Division

5th Court Howrah in T.S. 689 of 2020 stands modified to the extent

that Learned Pleader Commissioner shall hold Local Inspection on

all the points mentioned in i) to vii) of schedule - "A" of application

under Order 39 Rule 7 and 8 of the Code of Civil Procedure. Other

contents of the order of Trial Court remain unaltered.

Urgent photostat certified copy of this order, if applied for,

should be made available to the parties upon compliance with the

requisite formalities.

Biswaroop Chowdhury,J: