SOUMEN SEN,J. - (1.) The refusal to appoint a commissioner on the basis of an application filed under Order 39 Rule 7 of the Code of Civil Procedure is the subject matter of challenge in this revisional application. In a suit for eviction inter alia, on the ground of violation of clauses (m), (o) and (p) of the Transfer of Property Act, that application was filed by the plaintiff for appointment of an advocate-commissioner for local inspection on the following points:"Points for local inspection (i) To note the present position/location of the suit premises; (ii) To note whether there is existence of any mezzanine floor and nature of its construction; (iii) To note whether such mezzanine floor is embedded into the load bearing wall of the building; (iv) To note whether there is any sign board affixed in front of the said premises and the particulars thereof ; (v) To note who is carrying on business from the suit premises and who is in occupation of the said premises; (vi) To note any other local feature or features as may be pointed out by the plaintiff at the time of local inspection."
(2.) The opposite party contested the said application and dealing with the allegations made therein in paragraph '6' has categorically stated that the defendant never constructed mezzanine floor inside the suit premises. It was further averred that the mezzanine floor was in existence in the suit premises even before the commencement of the tenancy and as such the question of violation of any of the clauses of Section 108 of the Transfer of Property Act could arise. The said application was rejected on the ground that in the plaint although there is mention of unauthorised construction, but there is no reference of any mezzanine floor and accordingly it was held that the purpose of the instant application is to collect evidence in favour of the petitioner.
(3.) Mr. Saktinath Mukherjee, learned senior counsel appearing for the petitioner submits that the Court below has completely misdirected itself in considering the said application since the plaintiff has already averred that there is unauthorised construction and for the purpose of ascertaining the nature of such unauthorised construction, the said application was made. Mr. Mukherjee, however fairly submitted that he would press for clauses (i), (iv), (v) and (vi) of the points for local inspection and would restrict his claim to point nos. (ii) and (iii).;