Prasenjit Mandal, J. - (1.) THIS application is at the instance of the defendant and is directed against the Order No.13 dated December 7, 2010 passed by the learned Judge, City Civil Court, 4th Bench, Calcutta in Title Appeal No.43 of 2009.
(2.) THE plaintiffs / opposite parties obtained a decree for recovery of possession against the petitioner in respect of the premises No.26A, Creek Row, Kolkata on the ground of default and violation of Clauses (m), (o), (p) of Section 108 of the Transfer of Property Act. THEreafter, the defendant / petitioner preferred an appeal being Title Appeal No.43 of 2009. That appeal is pending before the learned Judge, City Civil Court, Calcutta. At the appellate stage, the petitioner filed an application for local investigation contending, inter alia, that though, an advocatecommissioner was appointed earlier, she exceeded her jurisdiction and she was not an expert to say about the construction and the unauthorised construction made by the appellant and as such, an engineer-commissioner should be appointed. That application was rejected by the impugned order. Being aggrieved, this application has been preferred. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that in respect of the contention of the ground for recovery of possession under the Clauses (m), (o), (p) under Section 108 of the Transfer of Property Act, a Commissioner was appointed and the learned Commissioner submitted her report which had been marked as Exhibit 13. There was a clear finding in the report that there was an access to the roof of the suit premises through a hole in the ceiling and the learned Trial Judge held that the defendant had made the hole in the ceiling of the premises without the consent in writing of the landlord and as such, the decree for recovery of possession was granted on that ground also. At the time of holding the commission, no objection was raised before the learned Trial Judge, and the learned Commissioner held commission in presence of both the sides and thereafter, she submitted the report.
(3.) DURING argument, Mr. Asish Sanyal, learned advocate appearing for the petitioner has referred to the decisions of Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam reported in AIR 1986 Madras 33, particularly paragraph no.6, the decision of Manmohan Das v. Bishnu Das reported in AIR 1967 SC 643 and the decision of Allahabad Bank v. Sourendra Nath Shaw and anr. reported in AIR 1997 Calcutta 80 and thus, he submits that according to these decisions, the Court may exercise jurisdiction properly so that a clear picture may come with regard to the matter in dispute. The prayer for repair as made by the petitioner, may be considered. The decisions as referred to above are on the general proposition when an application for local investigation should be allowed and what is the value of the report as per Order 26 Rule 10 of the C.P.C. So, I am of the view that such general principles need not be discussed more. Further, the decision of one case in the matter of investigation may not be applicable in the other case [as decided in the Ponnusamy Pandaram case (supra)].;