B.M. Mitra, J. - (1.) The present revisional application is directed against Order No. 193 dated 9.11.98 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in T.S. No. 1871 of 1990. By the impugned order an application made by the Commissioner for clarifying the order No. 147 was made. The said application was disposed of on, inter alia, the direction that the Engineer Commissioner is directed to complete the commission work as per direction given on 10.6.98. It appears from the original connecting application that the said application has been made a composite one being an amalgam of an application under Order 39 Rule 7 read with Order 26 Rule 9 of the Civil Procedure Code. This Court feels that by way of such amalgam, a composite application cannot be maintained as Order 39 Rule 7 is only applicable for the case of disposal of interlocutory pending application and Order 26 Rule 9 has its relevance for the determination of the issue. It is pertinent to make a reference to paragraph 5 of the said application where it has been stated that certain points are necessary for proper adjudication of the matter in issue. The matter in issue cannot be discerned unless issues are framed in terms of the provisions of Order 14 of the Civil Procedure Code. Therefore, the said application which purports to be an application in substance under Order 39 Rule 7 which is a necessary aid for disposal of a petition under Order 39 Rules 1 and 2 of the Civil Procedure Code and in that process time was allowed to elapse by way of 9 years. This Court feels that it will be not worthwhile to pursue such steps and liberty is given to the contesting parties to furnish the report of their respective experts and the court will adjudicate the prima facie case on reception of the report by experts. Even after the submission of the same and the order is passed at an interlocutory stage there is any survival of residuary point to be salvaged which emanates from point in issue. For that at necessary stage an application in the proper form can be made by either of the party under Order 26 Rule 9 of the Civil Procedure Code. This Court does not subscribe to the idea of wild goose chase by making such direction as a result of which main suit is likely to be solved in the cold storage. Therefore, the order impugned also stands superseded and the appointment made in favour of the Engineer Commissioner is set aside. In future, if occasion arises for appointment of Engineer Commissioner while disposing of a petition under Order 26 Rule 9 of the Civil Procedure Code it will be duty of the Court to select some other Engineer Commissioner apart from the said Samar Mukherjee.
(2.) Subject to above, the revisional application stands allowed and the same stands disposed of. The trial court is directed to fix a date of hearing of the application for injunction when the parties are given full liberty to produce their reports of respective expert and the court being expert of all experts will scrutinise the said report and will arrive at its own decision.
(3.) Let this order be communicated to the court below by a Special Messenger at the cost of the petitioner. The. Special Messenger cost is to be put in within a week from this date. Revisional application stands allowed and the same stands disposed of.;