High Court dismissed a civil revision invoking Article 226 of the Constitution of India against a trial court order granting leave for local inspection under Order XXXIX Rule 7 CPC in an ejection suit, holding no jurisdictional error was committed.
The civil revisional application (CO 992 of 2020) was dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
(02)
18.01.2021
(p.jana)
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION
( Via Video Conference )
CO 992 of 2020
Smt. Pratima Gupta -versus-
Swapan Kumar Dutt
Mr. Suchayan Banerjee, Mr. Souradeep Banerjee, Ms. Sharmistha Laha, … for the petitioner.
The defendant in a suit for ejectment being Ejectment Suit No. 268 of 2018 pending before the Learned Judge, 4th Court, Presidency Small Causes Court at Calcutta is the petitioner of the instant application under Article 227 of the Constitution of India.
The petitioner is aggrieved by the order no. 15 dated February 12, 2020 passed in the said suit.
The Learned Trial Judge by the order impugned has allowed an application under Order XXXIX Rule 7 of the Code of Civil Procedure filed by the plaintiff/opposite party for holding local inspection of the suit shop room.
The learned advocate for the petitioner submits that the Learned Trial Judge without considering the objection of the petitioner ventilated in the written objection to the said application has allowed the prayer of the opposite party for appointment of advocate commissioner.
2
The plaintiff is seeking eviction of the petitioner from the suit shop room inter alia on the grounds of reasonable requirement and the violation of the Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, 1882.
The plaintiff in the plaint has alleged that the petitioner has substantially damaged and destroyed the suit property and has made illegal construction of a mezzanine floor in the suit shop room.
The plaintiff in aid of the said ground of eviction has prayed for local inspection of the suit shop room, inter alia, on the points that whether there is any mezzanine floor inside the suit shop room and its measurement, if there be any.
The learned Trial Judge therefore has not committed any jurisdictional error by allowing the said application on the ground that the said inspection is necessary for the purpose of proper adjudication of the case and elucidation of the suit property.
The revisional application fails being devoid of any merit. CO 992 of 2020 is dismissed.
No order as to costs.
The Learned Trial Judge is requested to expedite the hearing of the suit.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
(Biswajit Basu, J.)
2 issues framed by the court
Whether the learned Trial Judge committed a jurisdictional error in allowing the plaintiff's application for appointment of an advocate commissioner for local inspection under Order XXXIX Rule 7 CPC.
Whether the revisional application is maintainable when the trial court's action was based on the necessity of inspection for proper adjudication.
3 provisions across 3 enactments
Smt. Pratima Gupta
Swapan Kumar Dutt
Biswajit Basu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
