ASITENDRA NATH MITRA Vs. CYRIL FURNANDES & ORS.

JUDGEMENT

(1.) This proceeding under Sec. 115 of the Code of Civil Procedure is directed against the order No. 81 dated 22.11.91 passed by the learned Chief Judge, City Civil Court in T.S. Case No. 2360/84.

(2.) As per the case of the plaintiff/petitioner, the suit property was leased out to the defendants by the then owner of the suit property, for 21 years from 1st Oct., 1963 at a monthly rent of Rs. 230.00 with a provision to increase the rent as noted there on the expiry of certain period. Subsequently by a registered deed of lease dated 28th March, 1965, the entire suit property was transferred to the plaintiff for a period of 30 years and the plaintiff brought the suit for eviction of the defendants/tenants on the expiry of 21 years.

(3.) Through the order impugned, the learned Judge considered an application under Order 39, Rule 7 of the C.P. Code, filed by the added defendants Nos. 3 and 4 on 14.8.91, praying for appointment of an Advocate Commissioner for local inspection. In dealing with the application, the learned Judge found that Shri Dwarika Nath Mukherjee an Advocate of the said Court, who had been appointed a Commissioner of local inspection by his previous order dated 17.7.91 for ascertaining and reporting as to whether there was any supply of drinking water in the disputed flat of the defendant Nos. 2 to 3, but inspite of such order the said Advocate Commissioner merely noted in his report that he had found water supply available in the suit premises. So the learned Judge found that the said Advocate Commissioner should once again be appointed for asserting as to whether there was any supply of drinking water in the suit flat and thereafter appointed the Commissioner for the aforesaid purpose. Being aggrieved by such order, the petitioner has come before this Court challenging the same alleging, inter alia, that the learned Judge of the Court below acted in excess of his jurisdiction by allowing the application for local inspection for the second time which was beyond the scope of the suit and also alleging further that the learned Judge erred in law in exercise of his jurisdiction by not considering that in the town of Calcutta only one type of water being supplied by the Calcutta Municipal Corporation to the dwelling houses.