Panchanan Pradhan vs Ram Kishan Agrawal

Biswanath Rath, J.—This Civil Miscellaneous petition arises against an order dated 06.10.2015 passed by the District Judge in FAO No. 12/20 of 2011 rejecting an application under Order 39 Rule 7 of the Code of Civil Procedure at the instance of the petitioner for inspection of the suit land.

Short fact involved in the case is that petitioner as plaintiff filed a suit bearing Civil Suit No. 5 of 2009 in the court of Civil Judge (Junior Division), Bargarh against the defendant opposite party seeking declaration of right, title and interest over the ''B'' Schedule land which corresponds to ''C'' Schedule land and for permanent injunction restraining the defendant-opposite party from entering upon the suit land.

Excluding the unnecessary facts since not relevant for the decision of the present matter, relevant fact in the matter involved in the case is that in the pending suit, the plaintiff filed an application for temporary injunction under Order 39 Rule 1 of the Code of Civil Procedure registered as I.A. No. 2 of 2009 temporarily restraining the opposite party from entering upon the suit land and from disturbing the peaceful possession of the petitioner. The opposite party-defendant resisting the said application, contended that the application should be rejected on the sole ground that the petitioner is not the owner in possession of the suit land.

Hearing both parties, the trial court vide order dated 26.08.2010 dismissed the I.A. No. 2 of 2009 for having no merit. Consequently the petitioner preferred an appeal bearing FAO No. 12/20 of 2011 and during pendency of the said FAO, the petitioner filed an application under Order 39, Rule 7 of the Code of Civil Procedure for issuing a Commission for inspection of the suit land in order to ascertain the existing structure and actual physical possession of the parties over the suit land. This application was also objected by the opposite party on the premises that there being no dispute regarding identity of the suit land, there is no such necessity. The right, title and interest of the parties can be decided on the available materials on record and therefore, there is no question of deputation of a Pleader Commissioner at this stage.

Hearing both parties, the lower appellate court vide impugned order dated 06.10.2015 at Annexure-4, rejected the application under Order 39 rule 7 of the Code of Civil Procedure holding that pending adjudication of the suit, the plaintiff is trying to collect materials and further since the question of possession can be substantiated by the parties leading evidence, this is not the stage to entertain such an application at the instance of the plaintiff.

Heard learned counsel appearing for both parties. There is no denial to the fact that the petitioner as plaintiff filed the suit bearing C.S. No. 5 of 2009 for declaration of his right, title and interest over the ''B'' Schedule land corresponds to ''C'' Schedule land and also for a decree of permanent injunction restraining the defendants from entering upon the ''B'' Schedule land corresponds to ''C'' Schedule land. On bare reading of the plaint it clearly discloses that the plaintiff has no where spelt any dispute regarding the identification of the suit property. It is on the other hand, the plaintiff has a clear case that while he is in peaceful possession over the disputed property, on 25.01.2009 the defendant came to plaintiff''s house and openly declared to take forcible possession of the plaint ''A'' Schedule land of the plaintiff including the adjacent Bari land of the plaintiff by taking help of local police it is also borne from the record that the petitioner concluded the hearing of the Interim Application in the trial court being satisfied with the fact the injunction application can be decided on merit in absence of the requirements indicated in the Order 39 Rule 7 of the Code of Civil Procedure application. The Interim Application has been concluded with an order of refusal against the petitioner. Reading of the application under Order 39 Rule 7 of the Code of Civil Procedure as filed by the petitioner, it is amply clear that the intention of the petitioner is to gather materials as to the physical possession over the disputed property ahead of the trial of the case. As quoted hereinabove, plaintiff has a specific plea that he is in peaceful possession over the disputed property and in the plaint schedule there appears a clear indication of the suit schedule property. In view of the specific averments made in para-8 of the plaint reading together with the prayer No. (a) and (b) of the plaint, this Court observes that the attempt of the plaintiff-petitioner is nothing but an attempt to collect material ahead of the trial and pending satisfaction of his own case through evidence in the trial.

Learned counsel for the petitioner has relied on a decision in the case of Sabitri Devi and Others v. Prasanna Kumari Devi @ Dibya @ Pramodini and Others reported in 1992 (II) OLR 14 a decision of this Court. Perused the decision cited by the learned counsel for the petitioner, in view of the difference in facts and situation involved in the cited decision, this Court is of the opinion that this cited decision is not applicable to the present case.

On the other hand, learned counsel for the opposite party to establish his case, cited number of decisions such as a case in between Abdul Naim Khan and Another v. Sk. Kefaittullah and others reported in 2013 (Supp.I) OLR-253 where this Court after taking into consideration several other decisions of this Court, has come to hold that allowing such application at the stage particularly before the suit has entered into trail, would amount to fishing out material for the plaintiffs. In a similar situation in another case between Bijay Kumar Jena and Another Vs. Dussasan '' Surendra Khuntia and Others, ,this Court observed as follows:

"The object of inspection of the suit land is to find out its condition. Assistance of the Court would be necessary where the party requiring the assistance is incapable of having the knowledge in view of the nature of the suit land. There may be situation where the party seeking the assistance of the Court is not allowed to have the inspection himself or through his agents or where the evidence adduced by both sides is such that the Court feels that the report of local investigation would help in assessing the evidence properly. The Court can take resort to the discretion under Order 39, Rule 7 of the Civil Procedure Code and this exercise can not be permitted on mere asking of the same."

Perused the impugned order at Annexue-4. The lower appellate Court has a categoric observation in rejecting the petition under Order 39 Rule 7 of the Code of Civil Procedure to the effect that in view of the dispute involved in the suit, the parties are quite able to submit their respective evidence and as the record reveals number of documents have been furnished before the court below and therefore accordingly held that there is no need for deputing a Commissioner in terms of Order 39 Rule 7 of the Code of Civil Procedure.

In view of the peculiar facts and specific averments as well as the prayer involved in the plaint, this Court is of the opinion that no material and evidence should be collected by using Order 39 Rule 7 of the Code of Civil Procedure ahead of the suit.

In view of the observation made by this Court and in view of the decision of this Court in the case of Abdul Naim Khan (Supra) and another decision of this Court in the case of Bijay Kumar Jena(Supra),this Court finds no error in the impugned order.

The Civil Miscellaneous Petition has no merit and thus stands dismissed. However, there is no order as to cost.