Inspection of suit property can be made only for the purpose of ascertaining the change in the property

25.11.2011

j.b.                                                          C.O. 619 of 2007

Dipak Chandra Ghosh & Ors

Versus

Subhas Chandra Bose & Anr.

Mr. Tapas Mukherjee,

Mr. Jayanta Banerjee,

Ms. Paumita Mullick.

…. For the Petitioners

In spite of service, nobody appears for the opposite parties.

This application under Article 227 of the Constitution of India is directed against the order dated 22nd August, 2006 passed by the Learned Additional District Judge, 1st Court, Jalpaiguri in Civil Revision No. 5 of 2002 and an order dated 2nd March, 2002 passed by the learned Civil Judge, Junior Division, Jalpaiguri in O.C. Suit No. 134/2000 allowing the prayer of the petitioners under Order 39 Rule 7 of the Civil Procedure Code for appointment of engineer commissioner on the allegation that substantial changes in the nature and character of the suit premises have been made by the opposite parties as described in paragraph 7 of the said application .

I find that the learned Trial Judge by the impugned order dated 2nd March, 2002 allowed the prayer for appointment of engineer-commissioner for holding local inspection to find out the nature and conditions, if possible with the age of the all pillars, roof and ceiling wall and other conditions of the suit premises with measurement of all side and to draw a sketch map of the suit property. Such order was challenged by the petitioners in exercise of power under Section 115A of the Code of Civil Procedure before the learned Additional District Judge, 1st Court, Jalpaiguri being Civil Revision No. 5 of 2002. In view of the amendment to the Civil Procedure Code which was given effect on 1st July, 2002 the revisional application was dismissed as not maintainable by the impugned order dated 22nd August, 2006. Thereafter the petitioners have approached this Court under Article 227 of the Constitution of India.

Learned Counsel appearing for the petitioners submits that the impugned order dated 2nd March, 2002 appointing engineer commissioner is a non-speaking one and has been couched in a vague and non-specific manner.

I find substance in such submission of the learned Counsel.

I am of the opinion that in the facts and circumstances of the instant case it is necessary to hold inspection by an engineer commissioner but the purpose of such inspection has not been articulated in the impugned order. As a result, such inspection would amount to fishing and roving enquiry for collecting evidence.

Hence, I modify the impugned order and direct that the work of the engineer-commissioner, as indicated in the said impugned order would be restricted to the allegations made in paragraph 7 of the said application. In other words, the engineer-commissioner would inspect the premises and act in terms of the impugned order dated 07.03.2002 only for the purpose of ascertaining the change in the nature and character of the suit property as alleged in paragraph 7 of the said application.

With the aforesaid observation, the instant application is disposed of.

(Joymalya Bagchi, J)