Form No. J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE BEFORE: THE HON’BLE JUSTICE OM NARAYAN RAI C.O. 639 OF 2025 AVIJIT DEY & ANOTHER …PETITIONERS -VERSUS- PRADIP PAL & OTHERS …OPPOSITE PARTIES For the Petitioners : Mr. Sukumar Bhattacharyya, Adv. Ms. Oindrila Chatterjee, Adv. Ms. Subhangi Bhattacharya, Adv. For the Opposite Party No.1 : Mr. Aniruddha Chatterjee, Sr. Adv. Mr. Kushal Chatterjee, Adv. Mr. Oishik Chatterjee, Adv. Heard on : 18.09.2026 Judgment on : 18.09.2026 OM NARAYAN RAI, J.:- 1. This revisional application assails an order dated February 01, 2025 passed by the Learned Civil Judge, Senior Division, Additional Court, Hooghly Sadar in Title Suit No.241 of 2023. 2. Title Suit No.241 of 2023 has been instituted by the opposite party no.1 herein (hereafter “the opposite party”) against the petitioners and the opposite party nos.2 & 3 praying, inter alia, for decrees of declaration, accounts and permanent injunction. 3. In the said suit, the petitioner filed an application under Order 11 Rule 14 of the Civil Procedure Code, 19081 praying for production of certain documents which were in possession of the opposite party. 4. The opposite party no.1 on the other hand filed an application under Order 39 Rule 7 of the Code seeking an order of inspection of the daily cash book, Current Accounts, Savings Accounts and monthly/six months yearly income and expenditure of the business of the petitioner as well as for preparation of balance sheet and as submission of profit and loss accounts of the business by “an Accounts knowing Advocate” of the said Court. The parties contested the said application by filing their respective written objections. 5. Both the applications were heard by the learned Trial Court and were disposed of by a common order dated February 01, 2025. By the said order the application filed by the petitioner under Order 11 Rule 14 of the Code was disposed of without passing any order as prayed for and the opposite party’s application under Order 39 Rule 7 of the Code was allowed by treating the same as an application under Order 26 Rule 11 of the Code. 6. Feeling aggrieved thereby the petitioner has approached this court by filing the present revisional application. 7. Mr. Bhattacharyya, Learned Advocate appearing for the petitioner has taken this Court through the plaint of the opposite party, his application under Order 39 Rule 7 of the Code and his written objection to the petitioners’ application under Order 11 Rule 14 of the Code to demonstrate that the opposite party has not been able to make out any prima facie case that he is the proprietor of the relevant business. 1 Hereafter “the Code” 8. It is submitted that it will be apparent from plaint itself that the relevant business is in the nature of partnership and not proprietorship. 9. It is further submitted that the learned Trial Court has failed to take into consideration the fact that in the written objection to the petitioner’s application under Order 11 Rule 14 of the Code the opposite party has categorically denied that he did not file any document to show that the opposite party was the proprietor of the relevant business or that the petitioners were not employees under the opposite party. He also invites the attention of this Court to a letter written by the opposite party to the petitioners to assert that the opposite party has clearly admitted in the said letter that the subject business is one in the nature of partnership and not proprietorship. 10. It is asserted that said letter has been referred to in the plaint but has not been made part thereof. Mr. Bhattacharyya further submits that by the order impugned, the learned Trial Court has not only converted the application under Order 39 Rule 7 of the Code to one under Order 26 Rule 11 thereof but has thereby also delegated its essential judicial functions to a Commissioner appointed by the Court. 11. Mr. Bhattcharyya relies on following judgements of the Hon’ble Division Benches of this Court on the point that prima facie case has to be made out for the purpose of granting an order of inspection under Order 39 Rule 7 and that an application under the said provision cannot be used for fishing out evidence:- i) The Institution of Engineers (India) & Another vs. Bishnu Pada Bag & Another2 ii) The Owners and Parties Interested in the Vessel M.V. “Baltic Confidence” vs. The State Trading Corporation of India Ltd. & Another3 12. Mr. Chatterjee, learned Senior Advocate appearing for the opposite party submits that the plaint indeed shows a prima facie case in favour of the petitioner. Relying Section 6 of the Indian Partnership Act, 1932, it is submitted that the nomenclature of the business is not the touchstone for assessing/testing the nature of a business and that it is the real relationship between the parties that governs the nature of a business. 13. It is further submitted that in any case, it has been admitted by the petitioner that the opposite party was at one point of time one of the partners of the partnership and that being so the opposite party cannot be said to be a stranger to the said business. 14. Mr. Chatterjee further submits that in terms of the averment made by the petitioners in their written objection to the application under Order 39 Rule 7 of the Code, it is clearly deducible that the opposite party has no access to the books of accounts of the relevant business and that being so it would be near impossible for the opposite parties to have a sight of the real state of affairs of the business. 15. Heard learned Advocates appearing for the respective parties and considered the materials on record. 2 1977 SCC OnLine Cal 266 3 1999 SCC OnLine Cal 339 16. By the order impugned, the learned trial court has disposed of two applications - one under Order 11 Rule 14 of the Code filed by the petitioner and the other under Order 39 Rule 7 of the Code filed by the opposite party. 17. The order runs into three pages. Out of them, the first page is devoted to recording the respective cases run by the parties in their respective applications. A little more than half of the second page has been consumed in recording submissions made on behalf of the both of the parties. 18. In the later portion of the second page, the learned Trial Court has recorded the reasons thus:- “Neither party filed any document in support of their claim. The plaintiff stated that all of his relevant documents are kept in the business place and the defendants are not permitting him to enter there. On the other hand, the defendants stated that the concerned Echo Doctors Clinic & Diagnostic Centre is partnership business and not proprietorship business as stated by the plaintiff. But the defendants did not file any partnership agreement or any other document in support of their claim. In this circumstance, this Court is of the opinion that if an accounts commissioner is appointed to inspect the daily cash book, current accounts, savings accounts and monthly/6 months and yearly income and expenditure of the business and prepare balance sheet in c/w the business namely, Echo Doctors Clinic & Diagnostic Centre, neither party would be prejudiced. It is a settled principle of law that misquotation of section shall not bar the party to claim relief. When the plaintiff stated that all of his relevant documents are kept in the business place and the defendants are not permitting him to enter there, there is no justification to give direction to the plaintiff to produce the license issued by CMOH, Hooghly, trade license, pollution license, fire licence, ISO certificate, registration certificate etc before the Court according to the petition filed by defendants under order 11 rule 14 CPC.” 19. And thereafter the learned court has passed the following order:- “that the petition dated 03.04.2024 filed by the plaintiff is hereby allowed on contest under order 26 rule 11 CPC but without any order as to costs. The petition dated 12.09.2024 filed by the defendants is hereby disposed of on contest as per the above observation. The Ld. Advocate Sri. Pradip Kumar Ghosh of Chinsurah Bar be appointed as Accounts Commissioner in the present suit. The Ld. Accounts Commissioner shall inspect the daily cash book, current accounts, savings accounts and monthly/6 months and yearly income and expenditure of the business and prepare balance sheet in c/w the business namely, Echo Doctors Clinic & Diagnostic Centre and also to inform the Court regarding the nature of the firm as to whether the same is relating to partnership business or proprietorship business. Page 6 of 8 Ld Accounts Commissioner is requested to perform the commission work after issuing notice on both sides and also after observing all legal formalities and submit his report within the next date fixed. Plaintiff is directed to deposit Rs.8000/- as Commissioner's fee within next date. Writ shall be issued after the deposition of the Commissioner's fee. Plaintiff is directed to submit the requisites at once. Ld Accounts Commissioner also be given a copy of this order for his reference and doing his Commissioner work. To 13.03.2025 for Commissioner's report.” 20. The recording that “The plaintiff stated that all of his relevant documents are kept in the business place and the defendants are not permitting him to enter there.” and the reasoning that “When the plaintiff stated that all of his relevant documents are kept in the business place and the defendants are not permitting him to enter there, there is no justification to give direction to the plaintiff to produce the license issued by CMOH, Hooghly, trade license, pollution license, fire licence, ISO certificate, registration certificate etc before the Court according to the petition filed by defendants under order 11 rule 14 CPC.” are clearly at variance with the pleadings of the opposite party in the written objection to the petitioners’ application under Order 11 Rule 14 of the Code. The same are solely based on the submission made by the learned Advocate for the opposite party. 21. This will be evident from paragraph 9 of the said written objection which reads thus:- “9) That the contents of the paragraph no.2 of the petition under reply are not true. It is not true that the plaintiff did not file any documents to show that the plaintiff is sole proprietor of the said business, it is also not true that the plaintiff did not file any documents to show that the defendants are employees under the plaintiff.” 22. In view of the aforesaid stand taken by the opposite party in his written objection, the reasoning that neither party filed any documents in support of their claim and that the plaintiff stated that all his relevant documents are kept at the business place, therefore, cannot said to be based on material record. 23. Furthermore the direction of the learned Trial Court that “The Ld. Accounts Commissioner shall inspect the daily cash book, current accounts, savings accounts and monthly/6 months and yearly income and expenditure of the business and prepare balance sheet in c/w the business namely, Echo Doctors Clinic & Diagnostic Centre and also to inform the Court regarding the nature of the firm as to whether the same is relating to partnership business or proprietorship business.” in effect amounts to delegation of essential judicial function of the Court to a Commissioner appointed by Court. There is no justification for delegating such an essential judicial function of deciding the nature of business which would be an issue in the suit. 24. By doing so the learned Trial Court has in fact inverted the burden of proof and thereby subjected the petitioners’ business to an intrusive financial audit without any reason at all. 25. Learned Trial Court has failed to appreciate that if the opposite party was unable to lay hands on certain documents which according to the opposite party were not in his possession then the opposite party could very well resort to the appropriate mechanism provided in the Code itself for production of such documents and inspection thereof. 26. The same not having been done, the learned Trial Court was not justified in converting an application filed under Order 39 Rule 7 of the Code to one under Order 26 Rule 11 of the Code and passing orders for examination of accounts. The same was clearly impermissible as the two provisions serve absolutely different purposes. Further there is no reason at all how and why such conversion was justified at this stage when appropriate mechanism for production of documents is available in the Code itself. 27. For all the reasons aforesaid the order impugned dated February 01, 2025 is set aside. The matter is remanded to the file of the learned trial Court for a fresh consideration. The learned Trial Court shall hear the parties afresh and take a fresh decision on the matter, in accordance with law. 28. It is made clear that the observations made herein as regards the merits of the respective cases of the parties are only for the purpose of deciding the present revisional application and the learned Trial Court shall be free to take its own decision in this matter independently in accordance with law without being influenced by any observation made herein above on merits as aforesaid. 29. C. O. 639 of 2025 stands disposed of. No costs. 30. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties on urgent basis after completion of necessary formalities. (Om Narayan Rai, J.) Court No.7 Sl. No.: 12 BM