Overview of Order 39 Rule 7 of CPC

 Order 39 Rule 7 of the Code of Civil Procedure deals with "Detention, preservation, inspection, etc, of subject-matter of suit". This provision empowers courts to make specific orders regarding property that is the subject matter of litigation or connected to questions arising in the suit.

Detailed Provisions

Sub-rule (1) grants the court discretionary power to make orders on application by any party, subject to terms the court deems fit, for three specific purposes:

(a) Detention, Preservation or Inspection: The court can order detention, preservation or inspection of any property which is the subject-matter of the suit or about which any question may arise.

(b) Authorization to Enter Property: The court can authorize any person to enter upon or into any land or building in possession of any other party to the suit for the purposes mentioned above.

(c) Sampling and Experimentation: The court can authorize taking of samples, making observations, or conducting experiments that may be necessary or expedient for obtaining full information or evidence.

Sub-rule (2) provides that the provisions relating to execution of process shall apply mutatis mutandis (with necessary changes) to persons authorized to enter under this rule.

Nature and Scope of the Provision

Discretionary Power: Order 39 Rule 7 is an "enabling provision" that does not compel the court to pass orders as sought by parties. The provision is "directory and discretionary in nature, not mandatory or obligatory", meaning courts have complete discretion in deciding whether to exercise this power.

Primary Purpose: The main objective is to keep on record the existing condition of property so that if it undergoes any change, deterioration, or mischief by any party later, the court can ascertain this when required. This helps preserve evidence about the current state of disputed property.

Distinction from Order 26 Rule 9

There is a manifest distinction between Order 39 Rule 7 and Order 26 Rule 9:

• Order 39 Rule 7: Focuses on keeping a record of existing property conditions to detect future changes, deterioration, or mischief

• Order 26 Rule 9: Aims to ascertain, collect, or elucidate facts in dispute through proper scrutiny and examination

Evidence Value: Reports under Order 39 Rule 7 shall not be evidence unless otherwise proved, unlike reports under Order 26 Rule 10 which are considered evidence.

Application and Procedure

Timing: Applications under Order 39 Rule 7 may be made at any time after institution of the suit by plaintiffs, while defendants can apply at any time after appearance.

Notice Requirement: Before making an order, the court must direct notice to be given to the opposite party, except where delay would defeat the object of the order.

Practical Application

The power under Order 39 Rule 7 is not frequently used and is exercised by courts when occasion demands and when inspection is necessary for proper appreciation and adjudication of the matter. Courts typically use this provision when they need to document the current state of disputed property for future reference rather than for immediate fact-finding purposes.

This provision serves as an important tool for interlocutory applications, allowing courts to preserve crucial evidence about property conditions during the pendency of litigation, thereby ensuring that material changes don't prejudice the final determination of disputes.

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