ARABINDA SAHA Vs. PROTITI CHATTERJEE

JUDGEMENT

(1.) The present revisional application is directed against order No. 5 dated 12.05.95 passed by the 1st Court of Munsif at Barasat in Title Suit No. 200 of 1995. By the impugned order the learned Munsif has allowed an application under Order 39, Rule 7 read with section 151 of the Code of Civil Procedure. The same has been preceded by passing of order No. 3 dated 8.5.1995 by the learned Court below issued a show cause notice an a petition for injunction under order 39, Rule 1 and 2 of the Code of Civil Procedure upon the defendant Nos. 1 and 2 and the Court has been further pleased to direct maintenance of status quo of the suit property till disposal of the application for temporary injunction. There has been a gap in between the two orders of 4 (four) days on, inter alia, the averments made in paragraph 2 of the connected petition under Order 39, Rule 7 of the Code of Civil Procedure on the footing that the defendants are trying to disposes the plaintiffs by force and the points from the local inspection have been highlighted in the said petition. The learned Court below has granted an expert order for inspection in terms of the impugned order.

(2.) Mr. Saktinath Mukherjee, the learned Counsel appearing on behalf of the petitioner, has taken a preliminary point in support of the contention that after amendment as introduced by the amendment of, the Civil Procedure Code in 1976 by incorporation of Clause 3 of Order 39, Role 8 of the Code of Civil Procedure and it has been submitted that before granting an order on such petition, normal rule is issuance of show cause notice and the Court can grant an expert order only in exceptional case when the Court finds by formation of its opinion that any delay would defeat the purpose of the said petition for local inspection. The amendment as it stands starts with a prefix that before making an order under Rule 6 or 7 when it appears that an object of making such order would be defeated by delay, the Court can issue such exparte interim order. The added Sub-rule 3 makes the position clear Routing, however, the power of the Court to make an expert order where it appears to the Court that object of making the order would be defeated by delay by directing notice. Mr. Mukherjee has stated before this Court that not only an expert order under Order 39, Rule 7 has been passed but the same has been completed In derogation of the right of the revisionist petitioner to notice. Mr. Mukherjee, in aid of his submission, has also pointed out that apart from construction of the provision of amendment of order 39, Rule 8(3) of the Code of Civil Procedure, adjudication without reason is an anachronism. According to him, law unaided by reason will not provide the Court with the key to unlock the gate of justice because right to reason cannot be conceived of uncivilized society when legal system for adjudication has been invoked. To appreciate the effect of amendment, a reference may be made from Maxwell's Interpretation of Statute which is quoted hereunder :

(3.) In order to pinpoint the change in meaning with the inclusion and/or amendment of Clause 3 of Order 39, Rule 8 of the Code of Civil Procedure, Mr. Mukherjee has referred to an unreported decision passed by this Court In The Matter of Electrosteel Castings Limited -vs.- Apurba Kumar Dewan" where this Court has occasion to deal with the same and this Court has held in the said judgment, the extracts of which are quoted hereunder: