Shri.A.Palswamy v. Shri.Sarjeevan Lall

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE MD. SHABBAR RASHIDI CO/49/2025 Shri. A. Palswamy ... Petitioner

Versus

Shri Sarjeevan Lall ... Opposite party For the petitioner : Mr. Adarsh Ilango Mr. Deb Kumar Bawali Heard on : 05.08.2025 Judgment on : 05.08.2025 MD. SHABBAR RASHIDI, J.

(per court) 1.

Petitioner is represented.

2.

Affidavit-of-service filed in Court be taken on record. 3.

None appears on behalf of the opposite party despite service.

4.

The instant revisional application has been filed assailing an order dated July 03, 2025 passed in Other Suit No. 21 of 2024 rejecting the prayer of the petitioner for local inspection in terms of the provisions of Order 39 Rule 7 of the Code of Civil Procedure.

5.

It is submitted on behalf of the petitioner that his petition filed in Other Suit was directed to obtain the present position of

the property involved in the suit for the purpose ascertaining the necessity of repairing. The petitioner is plaintiff/tenant in respect of the premises. The defendant/opposite party is the landlord in the properties. The plaintiff filed Other Suit No. 21 of 2024 before the Civil Judge, Junior Division, First Court at Port Blair. It was a suit for declaration of tenancy rights of the plaintiff/petitioner together with other ancillary reliefs. It is informed that the landlord/defendant is yet to file his written statement in the said suit.

6.

Plaintiff/petitioner in the said suit, filed an application under Order 39 Rule 7 of the Code of Civil Procedure seeking appointment of an advocate commissioner to ascertain the present physical status of the suit premises namely: "i. Whether the water is oozing from the roof of the tenanted premises i.e. kitchen or not?

ii. What is the present position of the roof of the kitchen? iii. What is the present position of the doors of various rooms of the suit premises?

iv. Whether painting is required to be carried out in the suit premises as the same is an old wooden building?" 7.

The landlord/defendant filed an objection to the petition under Order 39 Rule 7 of the Code of Civil Procedure filed on behalf of the tenant.

In such written objection, the landlord/defendant admitted that the plaintiff was a tenant in respect of the suit premises under him. He however, objected to the appointment of an advocate commissioner for the purpose of

ascertaining the present physical status of the suit property. According to the case made out by the petitioner/plaintiff, the tenanted premises under his occupation has gone in such a position that an immediate repair is required. 8.

Learned Trial Court considered application filed on behalf of the petitioner/plaintiff and the defendant/opposite party, and by impugned order, rejected the petition under Order 39 Rule 7 of the Code of Civil Procedure filed by the petitioner/tenant. It was observed by the Trial Court that points mentioned in the petition more specifically point No. (ii) and (iii) were in respect of structural conditions to be ascertain and that could only be done by a Civil Engineer which could not be ascertain by an advocate commissioner. On such pretext, the petition under Order 39 Rule 7 of the Code of Civil Procedure was rejected by learned Trial Court.

9.

As noted above the petitioner happens to be a plaintiff in respect of the Other Suit No. 21 of 2024 which he filed against the landlord/opposite party. It was specifically contended in the petition under Order 39 Rule 7 of the Code of Civil Procedure that water was seeping from the roof of their tenanted premises which rendered it difficult for the plaintiff/tenant to inhabit in such premises. It required immediate repairing.

10.

Learned Trial Court while disposing of the such application in respect of point No. (ii) What is the present position of the roof of the kitchen? and (iii) What is the present position of the doors of various rooms of the suit premises?, opined, in the impugned order that such questions could be looked into by a Civil Engineer. An advocate commissioner cannot ascertain the position as required by the aforesaid points of ascertainment.

11.

I have already held hereinbefore that the petition under Order 39 Rule 7 of Code of Civil Procedure was directed to ascertain whether water was seeping from the roof of the tenanted premises and whether it require any repairing for better habitation of the plaintiff therein. No construction work was sought to be undertaken in the said premises which was to be ascertain by a Civil Engineer. The petition under reference was directed only to ascertain whether any repair was actually required for congenial habitation in the suit premises. 12.

In such circumstances, the impugned order No. 8 dated July 03, 2025 passed in Other Suit No. 21 of 2024 is set aside. 13.

Learned Trial Court shall proceed to appoint an advocate commissioner for the purposes mentioned in the petition under Order 39 Rule 7 of Code of Civil Procedure filed by the petitioner/ plaintiff on October 1, 2024.

14.

It is made clear that upon receipt of such report by the advocate commissioner, the learned Trial Court shall consider the permission for repairing of the suit premises if required, in accordance with law, without being influenced by any observation made in this order.

15.

CO/49/2025 is accordingly disposed of.

16.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on priority basis upon compliance of all formalities.

(Md. Shabbar Rashidi, J.)