JUDGMENT
Arun Kumar Dutta, J.
1. This revisional application under Article 227 of the Constitution of India is directed by the defendant-petitioner (hereinafter referred to as defendant) against the Order dated 18th July, 1992 passed by the learned Additional District Judge at Hooghly in Civil Revision case No. 9 of 1992 before him, affirming the order dated 12th December, 1991 passed by the learned Munsif, 2nd court at Serampur, in Title suit No. 334 of 1989, for the reasons stated and on the grounds made out therein.
2. The facts as are relevant for the disposal of the revisional application, may shortly be set out as follows:–
The plaintiff-opposite party (hereinafter referred to as plaintiff) had filed the relevant suit for eviction of the defendant from the suit premises on the ground of reasonable requirement for his own and occupation and on the ground that the defendant had caused addition and alteration of the suit premises and had also caused nuisance and annoyance and damages, as alleged in the plaint. The Defendant is contesting the suit by filing written statement.
3. During the pendency of the suit the plaintiff had filed an application for local inspection of the suit premises on 5/11/90 on the 11 points stated therein. The learned munsif by Order dated 6-12-90 had allowed the plaintiffs application for local inspection in part on points Nos. 1 to 4,7 and 8 to 10, and had refused the prayer for local inspection on points Nos.5, 6 & 11 of the plaintiffs relevant application therefor. The learned Munsif having refused to allow the plaintiffs prayer for local inspection on the aforesaid points Nos. 5,6 and 11 the latter had moved the revisional application before the lower revisional court under Section 115A of the Code of Civil Procedure (hereinafter referred to as Code) against the aforesaid Order of the learned Munsif. The learned District Judge by his Order dated 28/01/1991 had allowed the plaintiffs revisional application without issuing any notice upon the defendant/opposite party. The defendant-tenant had also moved the learned District Judge in revision against the aforesaid Order of the learned Munsif dated 6-12-1990 and the learned District Judge by his Order dated 1 1-2-91 had also allowed the defendant’s revisional application in part. In view of the aforesaid two incongruous Orders passed by the learned District Judge on 28/01/91 had 11/02/91 the plaintiff had moved the learned District Judge for correction/reconciliation of the aforesaid two orders passed by him. The learned District Judge by his order dated 23-08-91 had then vacated the aforesaid two orders passed by him on 28/01/91 as also the Order dated 6-12-90 passed by the learned Munsif and had directed the learned Munsif to dispose of the plaintiffs relevant application for local inspection filed on 5-11-90 in terms thereof for the reasons recorded therein. The learned District Judge could not conceivably have corrected the Orders passed by him on 28-01-91 and 11-02-91 the way he did, as it was incompetent for him to do so according to law. However that may be, the order passed by the learned District Judge on 23-08-91 not having been challenged by any of the parties, stood; and the learned Munsif had proceeded to dispose of the plaintiffs relevant application for local inspection filed on 5-11-90 in terms of the aforesaid order of the learned District Judge. The said application was set down for hearing by the learned Munsif on 12/ 12/91 a fresh application had been filed by the plaintiff(hereinafter referred to as second application on almost the same points, as stated in the earlier application filed on 5-1-90 (hereinafter referred to as the first application). The said second application filed by the plaintiff on 9-12-91 was fixed for hearing by the learned Munsif on 12-12-91. 12-12-91 thus came to be fixed by the learned Munsif for hearing of the aforesaid two applicaition for local inspections filed by the plaintiff. On the dale fixed for hearing of the said two applications (12/12/91) the learned Advocate for the plaintiff had endorsed on the first application filed by him “Not pressed” by his dated signature thereon. The learned Munsif, in the aforessaid circumstances, without disposing of the plaintiffs first application, appears to have allowed the plaintiffs second application for local inspection on all points by passing an Order on 12-12-91. Being aggrieved by the Order so passed by the learned Munsif the defendant had moved a revisional application before the learned. District Judge under Section 115A of the code. The learned Additional District Judge concerned by his impugned Order dated 18/07/92 had affirmed the Order passed by the learned Munsif on 12/12/91 for the reasons recorded at length therein.
4. Being aggrieved by the order so passed by the learned Additional District Judge concerned, the defendant has filed the instant application for revision under Article 227 of the Constitution of India.
5. During the hearing of this revisional application the learned Advocate for te petitioner/defendant had urged that the second application for local inspection filed by the plaintiff before the learned Munsif on the same cause of action is clearly hit by the provisions of Order 9 Rule 9 of the Code and is barred under the law and is thus incompetent. He had also sought to urge that the first application for local inspection filed by the plaintiff having been disposed of, in the aforesaid circumstances the second application for local inspection filed by the plaintiff would be barred by the principles of constructive res judicata. But to that I would at once note with a minute of dissent that there is nothing on record to indicate that the first application for local inspection filed by the plaintiff on 5-11-90 had been disposed of by the learned Munsif. The second application had been filed by the plaintiff on 9-12-91 when the first application was very much pending before the court for disposal in terms of the Order passed by the learned District Judge on 23/08/91. It was only on 12/ 12/91 when both the first and second application for local inspection filed by the plaintiff were set down for hearing that the learned Advocate for the plaintiff had made an endorsement on the first application “not pressed” by putting his dated signature thereon (12.12.91). But despite the endorsement so made by the learned Advocate for the plaintiff on his first application no formal Order appears to have been recorded by the learned Munsif rejecting or disposing of the same. The first application filed by the plaintiff remained undisposed of as such, in the aforesaid circumstances. Even most charitably assuming for the sake of argument that the first application stood disposed of in view of the Order passed by the learned Munsif on 12.12.91 the same could not be said to have been disposed of on merits. No decision/reason has either been recorded by the learned munsif in disposing of the plaintiffs first application for local inspection. The question of res judicata could not conceivably arise, in the aforesaid circumstances. That apart in view of the observations made by the Hon’ble Supreme Court in Paragraph 13 of the decision the question of res Judicata could neither arise, in the facts and circumstances herein. The learned Advocate for the defendent/petitioner could neither satisfy the court with reference to any provision of law or authority that a second application for local inspection, in the facts and circumstances hereinabove indicated, would be incompetent or barred by law. That being so, I am not at all impressed with the submissions made by the learned Advocate for the defendant/petitioner on the points urged before me.
6. As against that, it would be pertinent to recall that the relevant suit is one for eviction of the defendant/tenant from the suit premises on the grounds of reasonable requirement for the plaintiffs own use and occupation and on the ground that the defendant had caused addition or alteration thereto, amongst other grounds. In the nature of the relevant suit, local inspection of the suit premises is absolutely necessary for elucidating the matter in dispute and for effective disposal of the suit. Local inspection can be allowed by the court in respect of the subject matter of the suit under the provisions of Order 39, Rule 7 of the code. The pleader commissioner could make local inspection in presence of the parties concerned or their authorised representatives, who may also request the learned commissioner to record all relevant local features to which his attention may be drawn by the parties at the spot during the local inspection. The commissioner is an officer of the court and the local inspection is thus be made through an agency of the court. The commissioner’s report to be submitted on local inspection cannot be held to be conclusive, and is only a piece of evidence, to be considered, along with the other evidence to be presented by the parties during the trial of a suit. The Pleader commissioner is required to formaly prove the report to be submitted in court and may as well be subjected to cross-examination by the aggrieved party. The evidentiary value of his report is required to be considered along with the other evidence to be adduced by the parties. That being so the defendant is not in the least likely to be prejudiced if the commissioner is directed to make local inspection of the suit premises in the nature of the relevant suit. He is neither likely to be prejudiced by local inspection in view of the remedy available to him under the provisions of Order 43, Rule 1A of the code.
7. In view of the discussions above and for the reasons quiteably recorded by the learned Additional District Judge concerned, I find little ground for interference with the impugned order passed by him.
In the premises above, the revisional application is liable to fail, as it must. The revisional application accordingly stands rejected. The impugned order passed by the court below be hereby confirmed. Since the matter is pending for a pretty long time in view of the pendency of the instant revisional application, the learned Munsif shall cause the local inspection to be completed the learned Advocate commissioner, as early as possible. The learned Munsif shall also seek to dispose of the relevant suit, as early as possible, preferably within a period of 9 months from the date of communication of this Order. It is only made clear herein that the learned Pleader commissioner shall make local inspection at the earliest after due notice to the parties in their presence or in presence of their authorised representative and shall record all relevant local features to which his attention may be drawn by the parties at the spot. If the defendant seeks to adopt any dilatory device for delaying the conclusion of the local inspection, the learned Advocate commissioner shall proceed to complete local inspection in his absence by recording the said fact in the relevant proceedings.
Interim Order, if any stands, vacated.
No order as to costs.