Suman Saha Alias Suman Prasad Saha And ORS v. Haran Chanra Das

27.01.2025 Item No.

A 182 Saswata C.O. 1693 of 2024 Suman Saha @ Suman Prasad Saha & Ors.

versus Haran Chandra Das Mr. Subir Banerjee Mr. Biswajit Nag ...For the petitioners 1.

Challenging the order no. 62 dated 19th February 2024 passed by the Learned Civil Judge (Junior Division), 1st Court Malda in C.O. No. 03 of 2020 in accepting the Advocate Commissioner's report, the instant revisional application has been filed.

2.

Mr. Banerjee, learned advocate appearing in support of the instant revisional application by drawing attention of this Court to the objection raised by the petitioner to the report of the Advocate Commissioner submits that the Commissioner had acted in a partisan manner. He submits that the Commissioner took aid and assistance of the opposite party in preparing such report. He submits that the Leaned Court had exceeded its authority and had erred in accepting the report of the Commissioner.

3.

Having heard the learned advocate appearing for the petitioner, I find that the instant suit has been filed by the opposite party for declaration of tenancy and injunction from eviction. Such fact would corroborate from paragraph 2 of the instant revisional application. The petitioner's case proceeds on the premise that the suit property has become dilapidated by natural wear and tear and since it has been declared to be dangerous, the same needs to be demolished. It appears that the Learned Court at the instance of the opposite party had allowed the application for appointment of the Advocate Commissioner under the provisions of Order XXXIX Rule 7 of the Code of Civil Procedure 1908 read with Section 151 thereof on contest. By order dated 17th May 2023, the Learned Court was, inter alia, pleased to direct appointment of Advocate Commissioner to conduct local inspection on the point nos. 1,

3, 4, 7, and 8 of the petition for local inspection filed by the opposite party. The aforesaid points for inspection are extracted hereinbelow:- "1. Whether the plaintiff has a shop in the building as described and the exact condition of doors, windows, walls and the ceiling of the said shop room and also whether there is any hole in the ceiling of the said shop room through which water and dirty soil is entering to the shop room?

3. whether there is any sign board on the jewelery shop and if yes, what is the condition of the sign board and also the condition of the ceiling and walls of the jewelery shop?

4. What is the condition of courtyard in which this jewelery shop is situated and the measurement of the courtyard and the shop?

7. The location of the suit building and possession of the jewelery shop and a detailed map of the same.

8. A sketch map of the suit property as described in the schedule of the plaint."

4.

It appears that the learned advocate-Commissioner had since upon completion of the commission work filed his report. A written objection was filed objecting to such report on behalf of the petitioner. It would transpire that the primary objection raised by the petitioner is with regard to the local inspection not being carried out by following due course of law and that the report is without any basis. The above objection is general in nature. There is no other specific ground indicated in the aforesaid objection, far to speak of any ground as regards the learned advocate-Commissioner acting in a partisan manner. It appears that he Commissioner was duly examined and cross-examined. The learned Court upon perusing the

document, petition and the commissioner's report and after considering the examination, was of the opinion that the commissioner's report dated 24th July 2023, field diary and the sketch map should be accepted. However, since there was no mention of photographs, in the order dated 17th May 2023, the Learned Judge had refused to accept the same. 5.

From a perusal of the aforesaid order it would transpire that the Learned Judge, on the basis of application of mind had accepted the Commissioner's report. I do not find any irregularity in the order of the Learned Judge. The submission made on behalf of the petitioner in Court today as regards the Commissioner acting in a partisan manner, does not find place in the objection filed by the petitioner.

6.

Having regard thereto, the revisional application being C.O. 1693 of 2024 is dismissed without any order as to costs. 7.

All parties shall act on the basis of the server copy of the order duly downloaded from this Court's official website. (Raja Basu Chowdhury, J.)