JUDGMENT
1. The facts of the case in which this Rule has been granted are briefly these : The plaintiff-opposite party on the 12th January 1927 filed a suit for rent against the present petitioners. The amount claimed in this suit was Rs. 12,394 odd, being the balance of the rent due for one year and eight months only. The area of the demised land which comprises some 24 mouzas is about 5,000 bighas. The defendants-petitioners appeared on the 17th February. After various adjournments they finally filed their written statement on the 30th April. Then on the 28th June the defendants filed an application for a local investigation. It was apparently a part of their defence that they had been dispossessed by the plaintiff from a portion of the demised land and hence they were entitled to total suspension of rent. It will also appear that the area of the land from which the alleged dispossession took place is some 100 bighas. The learned Subordinate Judge apparently was not satisfied that the application for local investigation was bona fide and he recorded the following order:
It is doubtful whether the comparison of the thak will benefit the defendant. Local enquiry for that will take time, If the defendant wants to do that, he must deposit the amount of the claim and plaintiff will be able, to withdraw 3/4ths of the amount before decree. If this is done within ten days local inquiry may be ordered.
2. Mr. Roy for the petitioners contends that the Judge had no power to order that the defendants must deposit the amount claimed and the plaintiff would be able to withdraw the of the amount so deposited. He contends that Order 26, Rule 15 only allows the Court to order that the party desiring local investigation should deposit the amount of the costs of the local investigation. Order 26, Rule 15, however, is not exhaustive. It only provides that the Court may, if it thinks fit, order that the party requiring investigation should deposit the necessary expenses for the investigation. But it does not prevent the Court, if it thinks fit, from making any terms that it chooses as a condition precedent to the granting of the preventfor local investigation. That it is so open to the Court, is clear from Order 26, Rule 9. If it is open to the Court to refuse a local investigation, then clearly it would be open to the Court to determine that the local investigation should only be granted on certain conditions. Clearly it is open to the petitioners, if dissatisfied with the conditions, not to proceed any further with the local investigation. They are now in no way in worse position than if the Court had at once refused to grant the investigation at all. In fact they are in a better position, because if they now comply with the conditions they can have now the local investigation desire. They are not obliged to comply with the conditions if they do not want to.
3. Looking at the facts of the case, it seems to us that the conditions imposed are really not unreasonable. The suit was filed so long ago as the 12th January 1927. The petitioners appeared on the 17th February. They then delayed more than what is ordinarily normal period before they filed their written statement. Even when they filed written statement they did not apply at once for a ‘local investigation but apparently waited until the land had gone under water and the relaying of thak map would be impossible. The result, of course, would be that the trial of the suit would be delayed for some time. Further it would seem that the amount of land alleged to be dispossessed, is roughly some 100 bighas. The proportionate rent of which would be Rs. 150 out of the total amount claimed, namely, Rs. 12,894. In the circumstances of this case we are of opinion that it was open to the learned Judge to impo3e the conditions that he did before granting local investigation and the conditions imposed in the circumstances of the case are not unreasonable. It is not easy to see how the matter came within the purview of Section 115, Civil P.C.
4. The Rule is, therefore, discharged with costs. Hearing-fee seven gold mohurs.
5. Let the record be sent down without delay.
Leave a Reply