- (1.) ORDER no. 38 dated December 16, 2009 passed by the learned Judge, 6th Bench, Small Causes Court at Calcutta is under challenge in this application under Article 227 of the Constitution of India at the instance of the defendant in Ejectment Suit No. 55 of 2007. By the impugned order, the defendant's petition under ORDER 39 Rule 7, Civil Procedure Code (hereafter the Code) has been rejected.
(2.) PERUSAL of the impugned order reveals that the learned Judge on the application of the plaintiff appointed an Advocate Commissioner. He was required to submit a report on the following points: 'i) The present accommodation of the plaintiff in the suit premises No.124, Mahatma Gandhi Road, Kolkata-700007 P.S. Jorasanko, measurement and mode of user. ii) The accommodation of the defendant in the suit premises measurement and mode of user. iii) Such other point or points to which the learned Advocates of the parties may draw the attention of the Ld. Advocate-Commissioner.' The Advocate Commissioner conducted local inspection upon notice to the parties and filed her report in Court. Copy thereof was furnished to the parties. On perusal of such report, the defendant found it to be incomplete, partial, vague, and incorrect, and not according to the specific direction in the writ of commission. He also found that the plaintiff had intentionally, purposefully and wrongfully suppressed materials facts regarding his occupation at the time of inspection. Accordingly, by filing a separate petition he prayed for appointment of a Pleader Commissioner to inspect and submit detailed report on the points noted hereunder: 'SCHEDULE 'A' AS MENTIOnED ABOVE : 1. To inspect and report the two rooms on the ground floor which are situated on the South of main entrance and another room which is situated just offosite of the earlier room, both the rooms are in occupation of the plaintiff which are not shown for the inspection purposely, wilfully by the plaintiff; 2. To note the mode of user thereof; 3. To inspect the three rooms which as situated on the 4th floor of the said premises and the mode of user thereof. 4. To Draw a Sketch Map thereof. '
(3.) THE learned Judge heard the parties. She noted that the report of the Advocate Commissioner had not been marked exhibit, and that the defendant had not filed any written objection in respect of such report. THE defendant's petition was rejected on two grounds viz. (i) it was incomprehensible as to why the defendant despite being at liberty to make submission at the time of inspection remained silent; and (ii) if there is suppression of material facts by the plaintiff regarding the number of rooms in his occupation or in the occupation of the defendant, it is the plaintiff who would suffer for his deeds. I have heard Mr. Bhattacharya and Mr. Chatterjee, learned advocates for the defendant/petitioner and the plaintiff/opposite party respectively. Although I am unable to be ad idem with the learned Judge insofar as the second ground of rejection of the defendant's petition is concerned, I see no reason to direct re-consideration thereof for appointment of the same Advocate Commissioner or a different Advocate, for further inspection, at this stage. If at all the plaintiff seeks to tender the report of the Advocate Commissioner as evidence in support of his claim, the defendant would have full liberty to file his objection thereto and even to cross-examine the said Advocate Commissioner. He would also obviously have the liberty to cross-examine the plaintiff for unearthing the truth regarding the number of rooms in the suit property under his occupation, so as to negate his claim of reasonable requirement. Moreover, the defendant by leading evidence ought to produce prima facie material to substantiate that the plaintiff has subsequently acquired possession of extra rooms. It is only thereafter that question of considering his petition for local inspection would arise. Rejection of his prayer does not appear to have resulted due to grave dereliction of duty or flagrant abuse of fundamental principles of law or justice by the learned Judge. After all, the learned Judge was exercising discretionary powers and it requires an exceptional case to be made out by the petitioner warranting interference. That is not the case here. Power conferred on the High Court under Article 227 is not to be exercised for regulating proceedings in course of trial of a suit at each and every stage.;