Smt. Sumitra Sett & Ors. vs Sri Tapan Kumar Sett & Ors.

The revisional application is at the instance of the defendants in a suit for declaration and injunction and is directed against Order No. 16 dated November 15, 2016, passed by the learned Civil Judge, (Junior Division), 1st Court, Hooghly at Chinsurah in Title Suit No. 53 of 2016.

The learned trial Judge in the suit allowed an application filed by the plaintiffs under Order 39 Rule 7 of the Code of Civil Procedure for holding local inspection of the suit property ex parte. An advocate commissioner was appointed for holding local inspection on the points as prayed by the plaintiffs in their said application under Order 39 Rule 7 of the Code. The advocate commissioner so appointed filed his report before the learned Trial Judge.

The defendants raised a preliminary objection in acceptance of the said report on the ground that no notice was served upon them prior to holding the commission work.

The defendants not only filed objection to the said report but also they filed a separate application under Order 39 Rule 7 of the Code of Civil Procedure for holding local inspection of the suit property afresh on the points mentioned in the said application.

Ms. Patra, learned advocate appearing on behalf of the plaintiffs/opposite parties submits that the Commissioner has not yet been examined.

The learned trial Judge while dealing with the said application under Order 39 Rule 7 of the Code filed by the defendants, in the order impugned has held that the Court does not find any anomaly in the Commissioner's report and overruled the objection of the defendants to the said report.

The Commissioner admittedly has not yet been examined. The defendants are entitled to cross-examine the said Commissioner on the points on which they are raising objection to the acceptance of the said report. The learned trial Judge prior to the proof of the said commissioner's report and without affording opportunity to the defendants to cross-examine the said commissioner on the points of their objection in accepting the said report should not have held that there is no anomaly in the said Commissioner's report.

The learned Trial Judge is, therefore, directed to afford opportunity to the defendants to cross-examine the advocate commissioner before accepting his report.

The learned Trial Judge thereafter shall consider the application filed by the defendants under Order 39 Rule 7 of the Code and if found that the said application is necessary for the effective disposal of the suit.

It is made clear that this Court has not gone into the merit of the application filed by the defendants seeking further inspection of the suit property and the learned Trial Judge is free to decide the same in accordance with law.

With the above observation, C.O. No. 4501 of 2016 is disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.