SHAFIQ AHMED Vs. NASEER AHMED

JUDGEMENT

(1.) The petitioner is aggrieved by the order dated 23.1.2014 passed by Civil Judge (Jr. Div.) and Metropolitan Magistrate East, Jaipur Metropolitan, whereby the learned Magistrate has rejected the petitioner's application under Order 39, Rule 7 CPC, and has refused to appoint a Commissioner for carrying out an inspection of the suit property.

(2.) The brief facts of the case are that the petitioner-plaintiff, Shafiq Ahmed, filed a suit for perpetual injunction against the respondent-defendants. According to the petitioner, he had bought the joint rights usage over staircase constructed from ground floor to the first floor, and building rights above first floor, through a registered sale-deed dated 22.12.2013 from one Mohammad Ishaq. After purchase of the said property, the petitioner constructed the second and third floor. The respondents have a set of house in the western portion of the petitioner-plaintiff's building, and the access is from their exclusive staircase. They do not have the access to the staircase situated in the eastern portion of the building. However, they have tried to carve out a gate on the third floor, opening through the staircase situated in petitioner's property. The respondent-defendants filed their written statement and denied the contents of the plaint. During pendency of the suit, the petitioner filed an application under Order 39, Rule 7 CPC praying for appointment of a Commissioner to assess and report the actual position with regard to the staircase. The respondent-defendants filed their reply to the application and contested the same. However, by order dated 23.1.2014 the learned Magistrate dismissed the application. Hence, this petition before this Court.

(3.) Mr. Gaurav Sharma, the learned counsel for the petitioner, has raised following contentions before this Court: firstly, there is clearly a distinction between appointment of a Commissioner under Order 26, Rules 9 and 10 CPC, and under Order 39, Rule 7 CPC. Order 26, Rule 9 CPC deals with appointment of a Commissioner when the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute and Rule 10 makes the Commissioner's report as part of an evidence. But Order 39, Rule 7 CPC merely empowers the Court to send a person for detention, preservation or inspection of any property. Therefore, while sending a person for inspection under Order 39, Rule 7 CPC, no evidence is being collected. In fact, the inspection report cannot even be treated as evidence in the trial. Therefore, the reasoning given by the learned Magistrate that a Commissioner cannot be appointed for collection of an evidence, or creation of an evidence, is a misplaced reasoning vis-a-vis Order 39, Rule 7 CPC. In order to buttress this contention, the learned counsel has relied on the cases of Nitindra Nath Roy Choudhury v. Subhas Ch.Kar, 1981 AIR(Cal) 319. Autodesk Insc & Another v. Arup Das & Others [CCP No.49/2011, High Court of Delhi, decided on 22.10.2013]; Suresh Manoharlal Jumani & Another v. Aasia Management & Consultancy Pvt. Ltd., 2013 6 AllMR 117, and Amiyu Bhusan v. Ahammad Ali, 1987 AIR(Ori) 203 Secondly, it is not necessary that the inspection report would have been in the petitioner's favour. The chances are that the report may either be neutral, or may be contrary to the petitioner's interest. Therefore, the learned Magistrate has failed to exercise the jurisdiction vested in him under Order 39, Rule 7 CPC. Thus, the impugned order deserves to be interfered with.