K. Chockalingam vs R.M. Ramasamy @ Sethu and K.M. Krishnan

S.S. Subramani, J.—Plaintiff in O.S.12 of 1998 on the file of Sub Court, Pudukkottai is the revision petitioner. Petitioner is aggrieved by the order in LA.16 of 1998, an application filed by him to take inventory by appointment of Commissioner. The application filed by petitioner was dismissed. Material averments which led to filing of the suit could be summarised thus:

The case of the plaintiff is that the ancestor of Plaintiff and defendants is one late T.S. Krishnappa Chettiar, and he had amassed wealth by doing business in India, Malaysia and Burma. He had three sons by name Chockalingam Chettiar, Ramasamy Chettiar and Muthaiah Chettiar. Chockalingam Chettiar predeceased Krishnappa Chettiar and at the time of his death, he was survived by his two widows Nagammal Achi and Kalyani Achi. They did not have any male issue and they adopted one Krishnappa. Plaintiff in the case is the son of Krishnappan.

Second son of Krishnappa Chettiar viz., Ramasamy Chettiar also died leaving behind his widow Sivagami Achi. She also did not have any male issue and father of the first defendant in the suit was adopted by him. Third son Muthaiah Chettiar left behind his widow Umayal Achi and two sons, who are defendants 1 and 2 in the suit. Second defendant is the son of Muthaiah Chettiar and his brother first defendant is adopted son of Ramasamy Chettiar. It is the case of plaintiff that over plaint items, he got 1/3rd share claiming right under Chockalingam Chettiar. It is his further case that there was a Panchayat to partition the properties and on 21.9.19%, 1/3rd share was allotted to plaintiff. It is his further case that in the very same building where defendants reside, movables like jewelleries, furniture, etc. are there over which also he is entitled to 1/3rd share. According to him, he is not in possession of the same to enumerate the details since the same are under the custody and possession of defendants. He wanted an inventory to be prepared for which he moved an application u/s Order 39, Rule 7 of the Code of Civil Procedure.

Detailed Counter affidavit was filed by respondents disputing the claim of plaintiff. According to them, after the death of Krishnappa Chettiar, his two sons Ramaswamy Chettiar and Muthaiah Chettiar were carrying on business and the entire business collapsed. They were also declared as insolvents in I.P.Np.71 of 1930 on the file of Chief Court, Pudukottai. Thereafter, the family did hard work and acquired certain assets and all the present assets are self-acquisition, which are not available for partition.

It is also said that item No. 1 was even brought for auction and the same was purchased in the name of Valliammai Achi, who subsequently declared that she did not have any right over the same. It is her further case that all the movables, jewellery, piece of furniture, etc., belong to them absolutely and plaintiff is not entitled to any right over the same. They admit that there was Panchayat. It is their case that since plaintiff happened to be the grandson of Chockalingam Chettiar, considering the relationship. he was allowed to occupy a portion of item No. 1 and that is the result of pure generosity. Defendants never admit that plaintiff is entitled to 1/3rd share in the assets of family. According to them, present application is intended only to harass them and to fish out evidence. They also doubted the bona fides of the application. They prayed for dismissal of the interlocutory application.

Lower Court after hearing counsel on both sides held that plaintiff has not proved prima facie case to prepare inventory. In regard to Panchayat, lower Court held that none of the movables were subject matter of the Panchayat and on the basis of agreement, plaintiff was given a right in item No. 1, regarding other documents, lower Court found that defendants are not parties to the same and it is not binding on them. The application was dismissed. It is against the said order, plaintiff has preferred this Revision Petition.

Since Caveat was entered by respondents, I heard the revision petition at the admission stage itself.

The only question that requires consideration is whether petitioner is entitled to have inventory prepared by Commissioner as sought for in I.A.16 of 1998.

The application was filed under Order 39, Rule 7 of Code of Civil Procedure, which reads thus,

''''Oder 39, Rule 7: (1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit.

(a) make an order for the detention, preservation or inspection of any property which is the subject matter of such suit, of as to which any question may arise therein;

(b) for1 all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit; and

(c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to-be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence:

(2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule."

u/s 94 of Code of Civil Procedure, Court is empowered to pass orders to prevent ends of justice being prevented and for the said purpose, it can pass such interlocutory orders as may appear to Court just and convenient. By virtue of Section 94, rules are framed under Order 39. Order 39 deals with temporary injunctions and interlocutory orders.

While considering the scope of Order 39, Rule 7, Justice Ramaprasada Rao (as he then was) in the decision reported in AIR 1969 Madras 204 =(1986) 81 L.W.413, (Subbae Gounder v. Palanathal) held thus,

"An application under Order 39, Rule 7 is provided for in Chapter entitled "Temporary injunctions and interlocutory orders" of the CPC Any order that a Court can pass under Order 39, Rule 7 is generally governed by Order 39, Rule 8, which appears to be a supplement to the earlier rule."

(emphasis supplied)

In AIR 1950 Raj 192 (Balbir Anand v. Ram Jawaya), it is held that orders are passed under Order 40 for the purpose of preventing the ends of justice from being defeated, and further that in the circumstances of the case, that order was just and convenient. Learned Judges said that under Order 39, Rule 7, the Court is empowered to make an order for the detention, preservation or inspection of any property'' which is the subject matter of such suit, or as to which any question may arise thereunder.

Sir John Woodroffee & Ameer Ali on CPC (1990 Edition), while considering the scope of Order 39, Rule 7 have stated thus,

"...The wide discretion under Order 39, Rule 7, C.P.C, is not to be exercised on the mere asking of the same...."

In Bijay Kumar Jena and Another Vs. Dussasan '' Surendra Khuntia and Others, it was held that under Order 39, Rule 7, C.P.C, court has the discretion to make an order for inspection of the property which is the subject matter of the suit. The wide discretion under Order 39, Rule 7, C.P.C, is not to be exercised on the mere asking of the same. In that case, plaintiff therein, wanted issue of commission to make local inspection. Trial Court held that other evidence could be let in about the nature of property and local inspection by Commissioner is not necessary. Said finding was confirmed by High Court by dismissing the revision. Learned Judge held that even though wide discretion is given to Court, the same is not to be used for mere asking..

On the basis of the above legal principle, I have to consider whether the Order of lower Court is liable to be revised u/s 115 of Code of Civil Procedure.

The definite case of defendants is that none of the plaint items are available for partition and plaintiff was allowed to reside in a building only on the basis of sympathy. It is admitted by defendants that there was a Panchayat. Panchayat itself arose after misunderstanding and to settle all questions they agreed to the suggestions made by panchayat that plaintiff may be allowed to reside in item No. 1. If plaintiff had claim over jewellery, furniture and other works of art, that also would have been made before Panchayat. Panchayat did not provide any right over those items. It is also contended by them that all the plaint items are acquired by them afresh after entire family was declared as insolvent. -

Even in regard to seeking inventory, plaintiff must have proved before Court that he has got prima facie case and unless an inventory is prepared, he will not be in a position to substantiate his case. Even if he is not in a position to know the details of items that by itself will not enable him to have inventory prepared unless prima facie case is shown. An inventory is not to be ordered merely for the purpose of fishing out evidence. As held by Orissa High Court, the same is not to be allowed on mere asking. Such interlocutory orders are passed to prevent the ends of justice being defeated. In this case, plaintiff has given valuation of all the movable though he has not given the details. Regarding valuation, I do not find there is any serious dispute by defendants in the written statement. Existence of movables jewellery, furniture and works of art are all admitted. Under these circumstances, I do not find that there is any necessity for issuing Commission at this stage for preparing inventory.

Plaintiff relies on Panchayat decision, which is marked as Ex. A1 in this case. Panchayat decision do not refer to any of the movables. Panchayatdars had to intervene only because of the misunderstanding in the family. If there was any right for plaintiff over these movables that also would have been a subject matter in the Panchayat. The very fact that there is no reference to movables prima facie shows that plaintiff did not either agitate the matter before Panchayat or Panchayat did not think of awarding share to plaintiff. Again Ex. A1 also do not show that plaintiff has been given some property as of right. It refers only to misunderstanding between family and to settle the same, some right is given to plaintiff over-item No. 1. The contention of defendants that plaintiff has given right only because of sympathy seems to be probable. So long as plaintiff has not proved prima facie case, there is no necessity for preparing inventory as sought for in IA.16 of 1998.

Learned Counsel for respondents also submitted that revisional powers u/s 115 of CPC is not to be invoked unless there is failure of justice. Learned Counsel also relied on a decision rendered by me, which is reported in 1993 (3) M.L.J. 702 (V. Veeraraghavan v. State Bank of India), said contention of Learned Counsel for respondent is also to be upheld. In the result, I find no merit in the revision petition and the same is dismissed. No costs. Consequently, C.M.P. No. 20297 of 1999 is also dismissed.