- (1.) THIS revisional application is directed against Order No. 17 dated 25th May 2009 passed by the learned Civil Judge, (Junior Division), 1st Court, Alipore, in Title Suit No. 85 of 2007 by which an application under Order 39 Rule 7 of the Code of Civil Procedure is rejected.
(2.) THE plaintiff/opposite party filed a suit for mandatory injunction restraining the petitioners from affixing an iron gate in any portion of the suit passage and/or obstructing and/or disturbing smooth use of the said passage. It is categorically stated in the plaint that the disputed passage is a common passage and the defendants/petitioners cannot put any fetter by affixing an iron gate on the western side of the said passage. According to the defendants/petitioners, the said disputed passage was meant for the sweepers in an earlier point of time but by passage of time it has lost its utility. It is further contended that they are using the said passage for several years and their doors and windows are abutting the said passage. On the strength of such defence an application under Order 39 Rule 7 of the Code of Civil Procedure was taken out by the defendants/petitioners for appointment of an Advocate Commissioner to inspect the said property for the purpose of ascertaining as to whether the plaintiff/opposite party has access to their premises from the main Corporation Road as well as 7 feet wide passage as also to see whether the doors and windows exists abutting the said passage.
(3.) TRIAL Court found that the relief, which has been claimed in the suit, does not require any report from an Advocate Commissioner. In other words, it is opined by the trial Court that inspection is not necessary for the purpose of granting relief in the suit. Mrs. Maity, learned Advocate appearing for the defendants/petitioners, vehemently attacks the said order by contending that the reason, assigned by the trial Court, is not supportable. She further submits that inspection is necessary to ascertain the nature of possession by the defendants/petitioners.;