Sri Subir Sen & Ors Vs Sree Sree Radha Gobinda Jew & Ors

Subhasis Dasgupta, J

The impugned order No.49 dated 17th April, 2018, passed by Learned Judge, 10th Bench, City Civil Court, Calcutta, rejecting the prayer for local inspection under Order XXXIX Rule 7 read with Section 151 of the Code of Civil Procedure filed by the plaintiffs is a subject of challenge in this revisional application under Article 227 of the Constitution of India.

The petitioners/plaintiffs filed a suit for declaration of their tenancy right in respect of tenanted premises held by one Dr. Sen claiming themselves to be the nephew/near relatives of deceased Dr. Sen. Both Dr. Sen and his wife died issuless on 2.1.2000 and 25.1.2010 respectively. The petitioners claiming themselves to be near relatives/heirs of the deceased erstwhile tenant wanted to have the tenanted premises inspected by appointment of a learned Inspection Commissioner for having a complete picture of the articles, held under possession of Dr. Sen (since deceased) for the purpose of acquiring possession over the same.

Admittedly, the tenanted premises held by Dr. Sen was put under a lock fixed by the defendants over which plaintiffs in turn also put a further padlock in assertion of their respective claims and counter claims.

Learned advocate for the petitioners submitted that since the order passed by Division Bench of this Court in connection with FMAT 504 of 2015 with CAN 4671 of 2015 took notice of the articles, held by Dr. Sen kept in a locked room, and passed order directing both parties not to disturb those articles during the pendency of the suit, and upon considering the purport of the order, a local inspection of the tenanted premises was felt necessary to become apprised of the articles under possession of erstwhile tenant namely Dr. Sen (since deceased).

It was argued with emphasis that in the absence of local inspection of the tenanted premises, held by Dr. Sen, of whom the petitioners were the only claimants, the preservation of the articles belonging to Dr. Sen could not be effectively done, and the learned court below failed to understand the real purport of the order conveyed by the Division Bench of this Court.

Learned advocate for the opposite parties controverting the submissions raised by the petitioners submitted in reply that the petitioners claiming right, title and interest in respect of the tenanted premises, last held by erstwhile tenant Dr. Sen (since deceased), were none, but trespassers, and the opposite parties would not allow the suit property to be inspected with the appointment of learned Inspection Commissioner, and if such an order allowing Local Inspection Commission be passed that would be violative of the order of injunction, passed by the Division Bench of this Court, which held its view for preservation of the documents kept in the locked room upon visualizing the actual state of affairs.

Admitted case of the petitioners is that defendants put a padlock in respect of the tenanted premises, held by Dr. Sen sometimes in 2010, and over which another padlock had also been put at the instance of petitioners/plaintiffs. Though, the petitioners are willing to open the padlock, put by themselves, but the opposite parties/plaintiffs are declined to do the same. There is nothing contained in the order passed in FMAT 504 of 2015 that for effective preservation of the articles, kept in the locked room, lastly held under possession of Dr. Sen, a local inspection would be irresistibly relevant. Admittedly, parties were directed to maintain status quo in respect of the suit premises with a direction upon defendants/opposite parties not to let out the suit premises or alienate the same in any manner during the pendency of suit.

It further appears that the Division Bench of this Court while disposing of such appeal had sufficient opportunity to take notice of the fact that the suit premises was kept under a padlock containing articles belonging to Dr. Sen and his wife.

When admittedly, there was a padlock fixed by the defendants in respect of the tenanted premises and over which plaintiffs/petitioners had put another padlock, there left unerringly a claim or counter claim of the articles, kept in the locked room, held under possession of Dr. Sen and his wife, erstwhile tenant. Nothing is there to reveal that petitioners approached the learned court below and subsequently, to High Court, when the appeal was disposed of, for a local inspection and inventories in respect of the articles held under possession of Dr. Sen and his wife, even after breaking open the padlock fixed by parties to this case. It is given to understand that the suit is appearing at the peremptory hearing stage. When preservation of the articles, kept in the locked room, was mostly emphasized in the order of the appeal court, while passing direction upon the parties to maintain status quo till the disposal of the suit, the Court is of the view that at this stage it would be an irrelevant exercise to allow the prayer for local inspection of suit property, what even could not be made at the appropriate stage provided in the Code of Civil Procedure. It is, thus apparent in given set of facts that it will be an idle exercise to pass an order of local inspection in a case, when there is strong possibility of disturbing the preservation of the articles/documents, held under possession of Dr. Sen in the locked room, what was principally considered to be of highest importance in the interest of effective adjudication of rights of the parties.

Upon consideration of the rival submissions of the parties, the prayer for local inspection does not deserve consideration. The impugned order dated 17th April, 2018 passed by Learned Judge, 10th Bench, City Civil Court, Calcutta in Title Suit No.30 of 2011 does not call for any interference.

With this direction/observation, the revisional application fails and accordingly, stands disposed of.

Urgent certified photostat copy of this judgement, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.