Prashanta Mistry v. Sabita Bhagat And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/59/2023 Prashanta Mistry Vs.

Sabita Bhagat and others Ms. Gopala Binnu Kumar ... for the petitioner Ms. A.S.Zinu ... for the respondents January 9, 2024 [SR] Item No.16 The revisional application has been filed challenging an order dated October 30, 2023 passed by the learned Civil Judge Senior Division, South Andaman District in Other Suit No. 64 of 2022.

By the order impugned, learned trial Court rejected the application under Order 26 Rule 9 of the Code of Civil Procedure.

The petitioner filed an application seeking local investigation of the suit property on the ground that during the pendency of the order of status quo, the defendant in the suit had raised some pillars and fixed nets thereon, thereby disturbing the ingress and egress of the plaintiff to and from the suit property.

The learned Court was of the view that in a suit for specific performance of contract, local investigation was not necessary. Investigation would be required to elucidate some dispute. The cause of action in the suit did not require appointment of an investigation commissioner.

Mr. Kumar, learned advocate appearing for the plaintiff submits that the said application was filed pursuant to observations by the Division Bench in MA/9/2023. According to Mr. Kumar, when the defendants violated the order of status quo an application under Section 151 of the Code of Civil Procedure was filed before the learned Court and the learned trial had directed the police authorities to implement the order the status quo. Challenging such order, the petitioner filed a writ petition.

The learned writ Court directed the police authorities to cause an inspection and ascertain the extent of violation and/or obstruction created by the defendants. The defendants challenged such order before the Hon'ble Division Bench and the Hon'ble Division Bench was of the view that in the Code of Civil Procedure had provided for local investigation and local inspection, the police authorities should not have been directed to make such inquiry and investigation in a pending suit.

Mr. Kumar submits that such observation of the Hon'ble Division Bench should operate as a direction upon the learned Trial judge to entertain an application for the local investigation.

In my opinion, the observation of the Hon'ble Division Bench was that when the Code of Civil Procedure provided a complete mechanism available to the petitioner including making a prayer for local investigation and local inspection, the writ Court should not have interfered and directed the Police authorities to cause such inspection. This would not mean that the petitioner can file an application under Order

26 Rule 9 of the Code of Civil Procedure and pray for local investigation in the vacuum.

The application seeking implementation of the order of status quo by police help, was allowed by the learned Court.

Thereafter, if the petitioner had further grievance with regard to violation of the order of the status quo, the petitioner's remedy was to file a proper application as per the law with proper foundation. Without any such application and/or allegation, the application for local investigation was misconceived.

Under such circumstances, the Court was right in holding that in a suit for specific performance, there was no requirement for local investigation.

The revisional application is accordingly dismissed. ( Shampa Sarkar, J. )