RADHARANI MONDAL Vs. DIPANKAR GANGULY

JUDGEMENT

(1.) The order impugned does not call for any interference. The revisional petitioner says that before them appointment of a local commissioner under Order 39 Rule 7 of the Code, it is imperative that notice of the relevant application be given to the other side. The petitioner says that despite the petitioner objecting to any order being made under Order 39 Rule 7 of the Code, the Trial Court merely permitted the petitioner to raise a subsequent objection to any report that may be filed by the commissioner without going into the petitioner's objection as to the maintainability of the interlocutory application under Order 39 Rule 7 of the Code. The petitioner says that the nature of inspection was such that it required an expert to undertake the exercise and the Court failed to take into account that a lawyer was not best suited for such exercise. The petitioner refers to the schedules to the plaint, including Schedule C thereto, and suggests that the petitioner ought to have been heard as to why no order of inspection could not have been passed in the circumstances.

(2.) The petitioner refers the decision for the proposition that a jurisdictional error is committed by the Trial Court if the Trial Court passes an order under Order 39 Rule 7 of the Code without giving notice to the other parties.

(3.) Order 39 Rule 8 of the Code provides for notice to be issued prior to the Court passing any order under Rules 6 or 7 of Order 39. However, Order 39 Rule 8(3) carves out an exception such that in a suitable case, where it appears that the object of making the relevant order would be defeated by delay, an order may be made before issuing notice to the other parties to an application under Order 39 Rules 6 or 7 of the Code.