Pramod Chandra Senapati vs Sanatan Jena and Others

Biswanath Rath, J.�Petitioner filed this Civil Miscellaneous Petition assailing the Order Dated 15.3.2014 passed by the Learned Civil Judge (Senior Division), Baleswar thereby rejecting the application at the instance of the Plaintiff-Petitioner under Order 39, Rule 7 of the Code of Civil Procedure, 1907. The brief fact of the case is that the Petitioner as Plaintiff filed a suit for declaration of right, title & interest over the suit schedule land, correction of Record-of-Right & also for permanent injunction. The Plaintiff''s case in the suit is that he is one of the sons out of five sons of his late father. One of the brothers of the Petitioner, namely, Pradip had earlier filed OS. No. 111 of 1972-1 for partition of their entire ancestral joint family properties impleading their father as one of the Defendant. The present Petitioner was impleaded as Defendant No. 3 in the said suit. The said suit was decreed in terms of compromise on 12.2.1975. The Petitioner therefore, submitted that the entire ancestral property has been partitioned in meets & bounds by allotting Ac.2.11 decimals of land as described in the plaint involved in the suit as ''Ga'' schedule land. All the co-sharers have been given 1/4th equal share in ''Ga'' schedule land i.e. Ac.2.11 decimals of land in favour of each. The Petitioner alleges that even though he is in possession of his allotted share, but in the final settlement Record-of-Right, the area was wrongly reflected as Ac.1.58 decimals in stead of Ac.2.11 decimals of land. The co-sharers raised dispute over the balance portion of land taking plea of recording in the Record-of-Right. It is in this view of the matter, the Petitioner was constrained to file the suit involved in this Writ Petition. In the suit, the Petitioner had also filed an application for injunction with a prayer to restrain the Defendants thereby not to disturb with the possession of the Plaintiff. The Trial Court after hearing the parties & going through the records granted an order of status quo. It is further alleged that while the matter stood thus, during current cyclone, namely, "Phylin" 30 numbers of Saguan trees & some other trees got uprooted involving the suit property. The Petitioner filed an application under Order 39, Rule 7 of the Code of Civil Procedure in the above pending suit with a prayer to appoint a Commissioner for investigation & preservation of all trees.

Upon notice, in the application under Order 39, Rule 7 of the Code of Civil Procedure, Defendant Nos. 1 to 3 i.e. the present Opp. Parties filed a common objection making averment therein that since the suit has been posted for hearing, there is no necessity to appoint a Commissioner alleging further that the Petitioner has already taken away the trees & the Petitioner has filed this application with an intention to delay the proceeding. The Defendants-Opp. Parties further submitted that there is no Teak trees on the described plot. Such application is not maintainable having been filed after the Plaintiff already filed his deposition under Order 18, Rule 4 of the Code of Civil Procedure, which includes reference of the documents as exhibits. The petition of the Petitioner was objected also on the ground that the hearing of the suit has already commenced, there is no necessity for appointment of Commissioner at this stage. Further, when there is dispute regarding boundary & dispute concerning right, title & interest, this is no scope to depute a Commissioner, which will ultimately disturb the trial in the proceeding. On the above premises, the Defendants-Opp. Parties submitted for rejection of the application under Order 39, Rule 7 of the Code of Civil Procedure.

The matter was heard by the Trial Court & by Order Dated 15.3.2014 the Trial Court rejected the aforesaid application on the premises that such application has been filed when the suit was posted for settlement of issues. Further, on the premises that law is well settled that the order of inspection is not to be provided for collecting evidence for the parties & such investigation is necessary only when the parties are incapable of having knowledge or inspection in view of nature of the suit. Further, since the land in question is open & witnesses are available, there is no need for appointment of a Commissioner at this stage, as it will otherwise amount to collection of evidence.

Before proceeding to deal with the merit of the case, it is necessary to refer to the provision contained in Order 39, Rule 7 of the Code of Civil Procedure.

"Rule 7. Detention, preservation, Inspection, etc., of subject matter of suit.--(1) The Court may, on the application of any party to a suit & 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, or as to which any question may arise therein;

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

(c) for all or any of the purposes aforesaid authorise any samples to be taker, 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."

From the above, it is amply clear that statute has made the provision for dealing particular matters under Order 39 Rule 7.

From the pleading of the parties it is amply clear that there is a clear dispute with regard to not only on the possession of the parties over the property beyond the Record-of-Right but also on the right, title interest over the disputed property as such, this Court do not find any illegality or infirmity with Plaintiff-Petitioner making an application under Order 39 Rule 7 of the Code of Civil Procedure & this Court hold that the Trial Court failed to appreciate this aspect involved in the matter. Particularly in the contingency that has taken place during pendency of suit as narrated in detail herein above. I also further hold that the Trial Court has failed in making a distinction in between Order 39 Rule 7 & Order 26 Rule 9 of the Code of Civil Procedure. In deciding similar disputes particularly deciding the question whether in such contingency, an application under Order 39 Rule 7 of the Code of Civil Procedure is maintainable or not, this Court in the case of Amiya Bhusan Tripathy Vs. Ahammad Ali, , held that application under Order 39 Rule 7 of the Code of Civil Procedure is very much entertainable & in deciding so this Court further held that the report obtained or the materials obtained in the process cannot be treated as evidence under Order 26 of the Code of Civil Procedure & inspection & inquiry in such matters are for limited purpose & are required to be considered to the extent of injunction only. Similarly, in another case of similar nature this Court in a decision between Savitri Devi & others vrs Prasanna Kumari Devi & others reported in 1991 (II) OLR 14 come to hold that the report of inspection in terms of Order 39 Rule 7 is not evidence unless otherwise proved & this Court also further held that there is a basic distinctive feature in the report collected under Order 39 Rule 7 of the Code of Civil Procedure vis-�-vis a report of a Commissioner appointed under Order 26 Rule 9 of the Code of Civil Procedure. I find both the above decisions squarely applicable to the Petitioner''s case.

I have gone through the citation cited by the Meghraj Gayatri Devi Vs. Jetling Rajeshwar, but find facts involved in the said case is altogether different & I do not find any applicability of the this decision to the case at hand.

Under the aforesaid facts, circumstances & in the settled position of law, I disapprove the impugned Order Dated 15.03.2014 passed in C.S. No. 315 of 2008 by the Civil Judge (Sr. Division), Balasore consequently while setting aside the Order Dated 15.3.2014 in C.S. No. 315 of 2008, this Court allows the application under Order 39 Rule 7 of the Code of the Civil Procedure at the instance of the Petitioner & direct the Trial Court to forthwith issue a commissioner for the purpose of the case at hand & submit his report within a stipulated period of time for consideration of the Trial Court with further direction that any report to be obtained in the process will be treated for the limited purpose of injunction & cannot be treated as a piece of evidence under Order 26 Rule 10 of the Code of Civil Procedure.

I make it clear that the observation made in this revision are only for the purpose of Order 39 Rule 7 & cannot be utilised in the ultimate decision in the suit.

The Civil Miscellaneous Petition is accordingly allowed. However, there shall be no order as to cost.