SANTILATA MITRA Vs. AIMAL KUMAR LAHIRI

JUDGEMENT

(1.) THIS Rule is directed against order No. 75 dated March 3, 1979 and Order No. 76 also passed on March 3, 1979. The learned Judge by the first order, namely Order No. 75 rejected the application for adjournment made by the: opposite party. The learned Counsel appearing for the petitioner in the instant Rule submits that the learned Judge hay not disclosed the reasons why the application for adjournment was rejected The learned Counsel submits that the reasons given in the application for adjournment are got to be considered by the learned Judge and after applying his judicial mind the learned Judge may allow the application or reject the application by giving reasons in the order. The learned Counsel submits that a mere cryptic order was passed without assigning any reason. There is force in the said submission of the jearned Counsel But in view of the order which T am going to pass in respect of Order No. 76 which is also under challenge in the instant Revisional app0lication no decisions of this Court is called for in respect of Order No. 75 the impugned order No. 76 may be set out hereunder : petition under Order 39 Rule 7 C. P. C. is put up. Heard the learned lawyer for the petitioner and the petition is allowed experts To 7. 3,79 for deposit Rs. 50/- as cost of commission.

(2.) THE relevant portion of the prayer made in the application under Order 39 Rule 7 of the Code of Civil procedure as made out by (he plaintiff is set out hereunder :

(3.) MR. Chatterjee, the learned Counsel for the petitioner contended that the learned Judge has not given any reason whatsoever for passing the said ex part order for local inspection under Order 39 Rule 7 of the Code of Civil Procedure. Mr. Chatterjee contended that an application under Order 39 Rule 7 is got to be disposed of after giving the other party an opportunity of being heard and the Court must give reasons as to why the Court thought it fit to pass an order for investigation by a Commissioner under Order 39 Rule 7 of the Code of Civil Procedure. In the impugned order the learned Judge did not give any indication as to what prompted. the learned Judge to pass the impugned order. Mr. Chatterjee further contended that it will also be evident from the prayer made in the said application under Order 39 Rule T which was allowed in full by the learned Judge by the said impugned order, that the commissioner should investigate and report violation of the order of injunction passed by the learned Court on August 8, 1978, for maintaining status quo. Such prayer of the plaintiff could not have been allowed under Order 39 Rule 8 of the Code of Civil Procedure. The Commissioner cannot be directed to report; violation of an interim order passed by the Court. The Commissioner can at best be directed to make inspection of certain features to be indicated by the Court and to give a report. Mr. Chatterjee submitted that it is for the Court of decide as to whether there has been a violation of the interim order passed by the Court and its adjudication cannot be delegated to the Commissioner for making a finding about such , violation. Mr. Chatterjee contended that as the Court failed to apply its judicial mind to the facts and circumstances of the case and also to the prayers made in the application under Order 39 Rule 7 of the C. P. C. , the said impugned order was passed allowing the said application of the plaintiff-petitioner.