SOUMEN SEN,J. - (1.) An application filed by the plaintiff-petitioner for appointment of an advocate-commissioner for the purpose of inspection of the suit premises under Order 39 Rule 7 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure was disallowed on the ground that such local inspection would not help the Court in adjudicating the controversy between the parties.
(2.) The real controversy of the suit is with regard to the proper identity of the suit premises that is to say the property over which the plaintiff is claiming possessory right is in fact a flat or used as an assembly hall and it would be necessary at the final trial to find out the real nature and character of the said suit property. In view thereof, I am inclined to interfere with the order passed by the learned 3rd Civil Judge, Senior Division at Alipore. The impugned order is accordingly set aside. The learned Civil Judge, Senior Division, Alipore is directed to appoint an advocate-commissioner to ascertain the present position of the ground floor of the flat as mentioned in the schedule of the plaint and make any observation with regard to any other features of the suit premises. The word 'flat' used in this order is on the basis of the submission made on behalf of the plaintiff-petitioner that the said area is being used by the plaintiff-petitioner as a flat in respect whereof a tenancy agreement exists between the plaintiff and the developer. The defendants-opposite parties submit that it is used as an assembly hall and there is no existence of any such flat let out to the plaintiff-petitioner under any agreement by the developer. It is only for the said limited purpose the commission should be held and not for any other purpose as mentioned in the schedule of the application. The commissioner should proceed with the work upon giving notice to the parties and file the report before the learned Civil Judge on the basis of the direction that will be passed by the said learned Judge.
(3.) The application thus succeeds in part.;