S NNARASIMHA RAGHAVACHAR Vs. S SSENGODI MUDALIAR

JUDGEMENT

(1.) This case has been referred to a Division - Bench by the learned Judge before whom it was first posted for hearing as the point Involved for decision is said to be a novel one about which there Is no ruling of tills Court. The question raised is whether a stranger can be directed or rather compelled at the Instance of a party to & suit to allow a Commission appointed by the Court to enter upon his lands for pur-pose of inspection and preparation of an inventory as regards stumps of trees etc. On the application I. A. 23 filled by the plaintiff in a suit relating to partnership after passing of a preliminary decree a Commissioner was appointed to make a report about the quality & number of trees cut and removed some years ago by seeing the stumps. It appears that the petitioner sold the trees to the defendant in the suit under Ex. VIII or Ex. M and that the information sought for has a bearing on the final decree to be passed in the case. The petitioner offered obstruction to the commissioner when he tried to enter upon his lands and thereupon an application, I. A. XXXI for removal of the obstruction was filed by the plaintiff. The learned Sub-Judge allowed the application rejecting petitioner's contentions arid the correctness of this is required to be examined.

(2.) It is conceded that the order can be Justified if the provisions of Order 39, Rule 7, Civil P. C. are applicable to the case and not otherwise. The said Rule is as follows:

(3.) A more important point than this which has to be taken into account is that petitioner is not a party to the suit. Clause (b) of Rule 7 expressly (mentions that the person against whom the order may be made should be a party to the suit. Sri Chandrasekhar on behalf of the respondent argued that it is enough if the requirement of Clause (a) about the property being the subject matter of the suit is satisfied and that Clause (b) is disjunctive. He did not refer to any case in support of such a construction. -- 'Jitendra Nath v. Asoke Nath, AIR 1919 Cal 312 (A), cited for the petitioner is distinguishable as the order was one against a party to the action but it suggests that he should have at least control over the property he is called upon to produce. As pointed out by Ameerali J. in -- 'Dhoroney Dhur y. Radha Gobind', 24 Cal 117 (B), the words of Order 39, Rule 7, Civil P. C. are the same as in the English Supreme Court rule. In --'Comes & Son v. Hayward', 1913-1 KB 150 (C), the construction, of Order 12 Rule 3 of the County Court Rules 1903 and 1904 Similar to Clause 2 of Order 39 Rule 7, Civil P. C. was raised. It was held that an order cannot be made under the rule to inspect the property of several tenants in common, some of whom are not before the Court. Reliance was placed in that case on the observation in -- 'Kearsley v. Philips', (1883) 10 Q. B. D. 465 (D) that