Prasenjit Mandal, J.@mdashHeard the learned Advocates of both the sides. This application is at the instance of the defendants and is directed
against the Order No. 47 dated May 13, 2010 passed by the learned Civil Judge (Junior Division), 2nd Court, Howrah in Title Suit No. 197 of
2006 thereby allowing an application for local inspection.
2. The plaintiff instituted a suit being Title Suit No. 197 of 2006 for eviction of trespassers, recovery of khas possession and permanent injunction
against the defendants. In that suit, he filed an application for local inspection under Order 39 Rule 7 of the CPC and that application was allowed
by the learned Trial Judge by the impugned order observing that the proposed inspection, if allowed, will not prejudice the defendants and as such,
the application was allowed. Being aggrieved, this application has been preferred.
3. Having considered the submissions of the learned Advocates of both the sides and on consideration of the materials-on-record, I am of the view
that the impugned order cannot be sustained.
4. In order to decide the nature of the suit, I may point out that the suit property has been described at page 18 of the application which is quoted
below:--
SCHEDULE
(DESCRIPTION OF THE SUIT PROPERTY)
ALL THAT piece or parcel of lands measuring more or less 2 cottahs 4 chittaks of vacant land along with structure at P.S. Shibpur within the
Howrah Municipal Corporation premises No. 13/3, Kankra Para Lane, P.S. Shibpur, butted and bounded by:
On the North : Land of Brihaspati Chatterjee
On the South : 12'' passage and thereafter open land of Kokil Roy
On the East : structures occupied by the defendants.
On the West : Land of Bholanath Bose.
5. So, from the description of the suit property, it is clear that the suit property has been described by plot No. and its boundaries and from such
particulars the suit property could be identified easily.
6. Mr. Mahendra Prasad Gupta, learned Advocate for the petitioners, submits that previously a suit was held between the parties and in that suit,
the matters were considered.
7. Anyway, I find that the inspection has been sought for on the following three points appearing at page No. 23:
(i) To note and draw a rough sketch map of the suit property.
(ii) To note the nature, manner of user and present condition of the suit property,
(iii) To note other feature and features as pointed out by the parties and/or their representatives.
8. If these three points are taken into consideration vis a vis the suit property, I am of the view that the Point No. (i) is a most formal point. The
Point No. (iii) is on the matter which is available as local features and the Point No. (ii) is to note the nature, manner of user and the present
condition of the suit property.
9. It may be noted herein that the petitioners has sought for relief of recovery of possession over the suit property which has been described with
the specific boundary of the same.
10. Mr. Debjit Mukherjee, learned Advocate for the opposite parties, has contended that the defendants have violated the order of the Court and
he has made unauthorized construction and as such, inspection is necessary.
11. With due respect to Mr. Mukherjee, I am of the view that keeping in mind the main relief sought for in the plaint, the schedule of the property
and the inspection as sought for, I am of the view that the proposed inspection is not at all necessary for proper adjudication of the matter in
dispute. Accordingly, the learned Trial Judge should have dismissed the application. Consequently, I am of the view that the learned Trial Judge
has committed material irregularity and illegality in the matter of passing the impugned order which cannot be upheld.
12. Mr. Mukherjee has also contended that if any injunction is prayed for and if there is a violation, so, it will be helpful if a report comes from
inspection.
13. With due respect to Mr. Mukherjee, I am of the view that such submission cannot be accepted because it is not clear, if any application for
violation of the injunction has been filed and that that is not the main consideration in the suit. So, the impugned order should be set aside.
14. Lastly, Mr. Mukherjee submits that a direction should be issued for early disposal of the suit since the suit is pending at the stage of framing of
the issues.
15. Uptil now, I do not find any illegality or irregularity. So, at present I am of the view that no direction is necessary. However, either of the
parties is at liberty to take appropriate steps if the situation demands.
16. Accordingly, I am of the view that this application should be allowed.
17. The revisional application is, therefore, allowed. The impugned order is hereby set aside. The application for local inspection stands rejected.
The learned Trial Judge shall proceed with the suit from that stage.
18. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy, if applied for, be given to the learned Counsel
for the petitioner upon compliance of necessary formalities.
