Lakshmi Rani Paul vs Sadhana Acherjee & Ors

Biswajit Basu, J

The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for declaration of tenancy right over the suit schedule 'B' property.

In the said suit, an ad-interim order of injunction in the following form was passed by the learned Trial Judge vide Order No. 02 dated July 13, 2018 on an application filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure:-

"The defendants and their men and agents are hereby restrained from demolishing the adjoining northern and eastern side of the B schedule premises and also from fixing any pillar on the southern side of the B schedule premises till 10.08.2018."

Mrs. Chakraborty, learned advocate appearing on behalf of the petitioner submits that the order is still subsisting.

The plaintiff in the suit filed an application under Order XXXIX Rule 7 of the Code for appointment of an Advocate Commissioner for holding local inspection of the suit property on the following points :-

a) To see and report about the present nature and character of the 'A' and 'B' schedule property.

b) To see and report whether the 'B' schedule property i.e. the suit premises is being used for running a medicine business under the name and style of "MAHAMAYA PHARMACY" or not?

c) To see and report whether any portion of the adjoining northern and eastern side of the 'B' schedule premises i.e. suit premises have been demolished or not? If so, the extent measurement thereof.

d) To see and report whether any debris, rubbishes and/or any other articles are stacked/kept over the roof of the 'B' schedule premises or not? If so, the extent and particulars thereof.

e) To see and report whether any damage has been caused on any wall or roof of the 'B' schedule premises (Suit Premises) or not?

f) To see and report whether there is any existence of any pillar on the southern side of the 'B' schedule premises or not?

g) To see and report whether there is any passage on the western side of the 'B' schedule premises and whether there are any ventilators/openings fixed on the northern wall of the suit premises or not?

h) To see and report whether any demolition works or any massonary works are going on adjoining to the 'B' schedule property or not? If so, then the extent and measurement thereof.

i) To see and report whether any building materials are stacked within or nearly to the 'B' schedule premises or not?

j) To see and report about any other local features to which the commission's attention may be drawn in the locality."

The plaintiff filed the said application in aid of her said pending application under Order XXXIX Rules 1 and 2 of the Code.

The learned Trial Judge by the order impugned has allowed local inspection of the suit property by an Advocate Commissioner only in respect of the 2nd part of the point no. 5(g), but denied such inspection of the suit property on other points.

In view of the nature of allegations of the plaintiff and denial thereof by the defendants local inspection of the suit property on some more points is required.

The order impugned, therefore, is modified by directing the learned Advocate Commissioner appointed by the order impugned to hold the said local inspection of the suit property on the point nos. 5(d), 5(e), 5(g) and 5(i) mentioned in the application under Order XXXIX Rule 7 of the Code.

The learned Trial Judge is requested to reschedule the date of local inspection.

The Advocate Commissioner shall make all endeavour to conclude the entire exercise of holding the said local inspection of the suit property within a period of four weeks from the date of receipt of the writ of commission.

The revisional application being C.O. 2737 of 2019 is, thus, disposed of. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.