NITINDRA NATH ROY CHOWDHURY Vs. SUBHAS CH KAR

JUDGEMENT

(1.) The plaintiff opposite party instituted a suit for ejectment. Before the defendants' appearance, he filed an application for inspection of the disputed premises and also of premises No. 17/1, Lansdowne Terrace, Calcutta. The prayer was allowed by the learned Munsif. Hence this revisional application by the petitioners-defendants.

(2.) The learned Advocate appearing on behalf of the petitioners has contended that the Court is not empowered under the provisions of Order 39, Rule 7 of the Code of Civil Procedure to issue a commission for inspection for the purpose of collecting evidence. The cases of Padam Sen v. State of U. P. in and of Institution of Engineers v. Bishnupada in have been cited. It has been contended that the issues were not settled at that stage of the suit. The issue of the commission was thus a premature one. Reference has been made to Rule 9 of Order 26 of the Code. It has been contended that after the issues are settled, if the Court thinks fit, a commission for local investigation could be issued. Since an illegal order was passed, it must be set aside and the revisional application is maintainable.

(3.) It has been argued on behalf of the plaintiff-opposite party that in the case of Nepal v. Mrinal, it has been stated that where the suit is for declaration, that the disputed premises belonged to partnership firm and for accounts and injunction, an ex parte order under Order 39, Rule 7 of the Code for inventory and custody of account books was passed. It was held by the High Court ihat such order was not invalid because the suit was filed for injunction restraining the defendants from removing the account books. The case of Amjad Ali v. Ali Hossain in 11910) 12 Cal LJ 519 at pages 522 and 523 has been cited to show that the right to grant an inspection implies a right to make an inventory if the Court is satisfied that the preparation of the inventory is essential for a proper decision ot the Court. Hence the Court has jurisdiction to make an order for preparation of such inventory under the provisions of Order 39, Rule 7 of the Code. The Court is competent to compel the proprietor to permit inspections as indispensable for administering the justice of the case. Such inspection is not an invasion of his rights, but a legal consequence of the obligation affecting the property and the proprietor. Moreover, in view of the amended provisions of Section 115 of the Code, the revisional application is not maintainable.