MUSARAF HUSSAIN MUNSHI Vs. ZELLAR RAHAMAN

JUDGEMENT

(1.) THE hearing stems from an application filed by the petitioner for revision of the order No. 77 and 78 dated 19.11.2010 passed by the learned Judge, Small Causes Court, 2nd Court, Calcutta in Ejectment Suit No. 41 of 2006-E. By way of setting aside the same inter alia on the ground that the learned Court below erred in coming to a definite conclusion in respect of the aforesaid orders and learned Court below has failed to appreciate the true picture of the suit property and was unjustified in rejecting the defendants prayer under Order 39 Rule 7 and allowing the plaintiffs prayer for recalling D.W. 1 for the purpose mentioned in the respective order.

(2.) THE present opposite party being the landlord brought a suit for eviction against the petitioner/defendant/tenant. THE parties contested the suit by filing their respective pleadings. THE petitioner adduce himself for the aforesaid suit as D.W. 1. After conclusion of evidence on 13.08.2010 the defendant filed an application under Order 39 Rule 7 read with Section 151 C.P.C. contending that plaintiff/opposite party surreptitiously and with some ulterior motive did not show one room under their occupation at the time of local inspection and as a result in order to bring the real picture in issue advocate commissioner is necessary. THE plaintiff/opposite party also filed an application for recalling D.W. 1 i.e. defendant/petitioner for the purpose of cross-examining him in connection with electric meter being Consumer NO. 25047054027 situated at 57, Ripon Street. After hearing both sides learned Court below rejected the defendants prayer for local inspection but allow the plaintiffs prayer for recalling the petitioner for cross-examination in connection with the said electric meter. Being aggrieved by and dissatisfied with the said order defendant as a petitioner prefer this instant revisional application challenging the legality validity of the order Nos. 77 and 78 dated 19.11.2010.

(3.) NOW the plaintiff as the defendant filed an application for holding a local inspection in the suit premises. During the pendency of the suit a local inspection was held and it was held in presence of both side. It was submitted by the learned Counsel Mr. Saha that learned Lawyer of the defendant was present at the time of holding inspection but defendant has forgot to show the room which he claims that same is under the occupation of the plaintiff. Practically it is the lacuna on the part of the defendant and by way of second application under Order 39 Rule 7 defendant wanted to fill up the lacuna. Admittedly a report under Order 39 rule 7 is considered as a secondary evidence unless the some cogent evidence is produced then only the report of the commissioner will help the case of the parties in any way and as such I do not find any merit by allowing the instant order.