Decided on May 18,1976

MINA DASI Appellant


Rabindranath Bhattacharya, J. - (1.)This revisional application has been directed against the order of a Subordinate Judge, Alipore, in a partition suit rejecting an application for local investigation filed by the defendant Nos. 1 to 3. The relevant facts of this case are simple. One Gouri Sankar Guha filed a suit for partition against several defendants including the petitioner before us. There was a preliminary decree in the suit and against that decree an appeal was taken to this Court. In that appeal there was a remand order. In the judgment passed in the appeal an issue was framed as to whether or not there was any previous partition by metes and bounds between the co-sharers in respect of C. S. and R. S, plot Nos. 271 and 271/3993 and 271/3994. In the ordering portion it was clearly stated that the case was being remitted to the trial court for a fresh decision on the issue as mentioned after giving an opportunity to both the parties to adduce such further or other evidence as might be considered just and proper. After the records had reached the trial court, an application was filed by the defendant Nos.l to 3 under Order 26, Rule 9 of the Code of Civil Procedure for local investigation. The defendants wanted to rely upon a certified copy of a very old partition deed of the year 1908 and for that purpose they wanted to resort to local investigation to identify the plots in suit with the lands described in the said partition deed. For the purpose of identification of the lands repayment was necessary and unless there was local investigation it would not be possible to identify the suit lands with the lands mentioned in the partition deed. The learned Subordinate Judge came to the finding that the local investigation as prayed for was not necessary at that stage. He was also of the opinion that the deed was not relevant for the present case because it did not refer to plot Nos. 271, 271/3993 and 271/3994. According to the learned Subordinate Judge the partition deed intended to be relied upon by the defendants did not help the parties in any way. In this view of the matter the application for local investigation was rejected.
(2.)We have heard Mr. Ganguly, the learned Advocate appearing on behalf of the petitioner, who applied for local investigation and Mr. Roy for the plaintiff-opposite party.
(3.)A preliminary objection was taken by Mr. Roy that the present revisional application under Sec. 115 of the Code of Civil Procedure is not maintainable, as it is not a case decided mentioned in the Section. The word "case" has not been defined either in the Code of Civil Procedure or in the General Clauses Act. In the present case the defendant filed a petition for local investigation. According to the Code of Civil Procedure, he has a right to take necessary steps to prove his own case and for that purpose, certainly, he is entitled to take assistance of a local investigation. That is the right of a party to the litigation. If the Court refuses that right illegally, unreasonably or arbitrarily, certainly it becomes a case of culpable error likely to inflict grave injustice. When the Court refuses to entertain a prayer of a party regarding the manner by which he wants to prove his case though permitted by law. it is a case decided displaying an illegal exercise of jurisdiction or, at any rate, a material irregularity and illegality which requires interference in revision. As we have already indicated earlier, there was a direction in the First Appeal that the trial court would give an opportunity to the parties to adduce fresh evidence so that the court might come to a decision as to whether or not there was a previous partition in respect of the three plots already mentioned. The learned Subordinate Judge was perhaps not conscious at the time when he passed the order that in the year 1908 there was no Cadastral Survey or Revisional Settlement operation and that the present plot numbers mentioned in the suit could not have been included in the partition deed. The proper course, therefore, for identification of the suit plots with the plots under the partition deed would be to take assistance of local investigation. We have no doubt to hold that the "Case" mentioned in Sec. 115 is of wider import than the 'Suit' or 'Appeal'. 'Case decided' means decision on substantial questions in dispute between the parties affecting their rights in course of the trial or during the pendency of any suit. Wrongful rejection of an application for local investigation necessary for proper decision comes under the purview of Sec. 115 of the C, P. Code. In this connection we may refer to the case of Sukumar Chatterjee Vs. Kiran Chandra Mitter, reported in AIR 1964 Calcutta at page 439. That is a Division Bench decision of this Court. An elaborate discussion has been made in that case on this point and we respectfully agree with the proposition of law accepted there and in that view of the matter, we would hold that the present application is covered by section 115 of the Code of Civil Procedure and also by Art, 227 of the Constitution.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.