NARAIN DASS v. KARAM CHAND — 1967 DIGILAW 149 (DEL)

( 1 ) THIS revision petition was filed by the defendant in a suit. No. 429 of 1965, in the Court of the. Subordinate Judge, Delhi, against an order of the learned Subordinate Judge, dated 28-7-1967, cancelling his earlier order issuing a commission for the examination of a witness, and directing the issue of a fresh commission for the examination of the said witness. ( 2 ) THE aforesaid suit was filed by the respondent (plaintiff) tor the recovery of Rs. 1,786 on account of alleged arrears of rent in respect of a portion of a house. The petitioner (defendant) took on lease the house in question, viz. . House No. 2187, Gali Hinga Beg, Phatan Habash Khan, Delhi, from its landlord on or about 8-2-1948. The said house was subsequently declared as evacuee property in May or June, 1948. The Custodian, on taking over the property, confirmed the tenancy of the petitioner (defendant), and fixed the rent payable by the petitioner (defendant) at Rs. 70 per month. According to the petitioner (defendant), he sub-let a portion of the house to the respondent (plaintiff) tor which the respondent (plaintiff) agreed to pay Rs. 35 per month The petitioner (defendant) alleged that the respondent (plaintiff), after some time, stopped the payment of the rent, that the Custodian, however, recovered the rent at the rate of Rs. 70 per month from the petitioner (defendant) by deducting the same from the compensation due to the defendant for his property left in Pakistan, and tor some balance that remained, the petitioner (defendant) purchased claims from other evacuees and tendered the same in payment of his rental dues to the Custodian. ( 3 ) ON or about 31-1-1958, the property was auctioned by the Custodian, and the respondent (plaintiff) purchased the same and obtained provisional possession of the same on 24-3-1962. The petitioner (defendant) was asked to attorn to the respondent (plaintiff) with effect from 24-3-1962. In that manner, the petitioner (defendant) became a tenant of the respondent (plaintiff ). ( 4 ) SUBSEQUENTLY, tor the rent due to him, I the respondent (plaintiff) filed the aforesaid suit on 2-6-1965. He, however, did not mention the amounts which were alleged to be due from him to the petitioner (defendant ). On 81-7-1965, the petitioner (defendant) filed his written statement, and on 1. 0-8-1865, the issue; were framed. ( 4 ) SUBSEQUENTLY, tor the rent due to him, I the respondent (plaintiff) filed the aforesaid suit on 2-6-1965. He, however, did not mention the amounts which were alleged to be due from him to the petitioner (defendant ). On 81-7-1965, the petitioner (defendant) filed his written statement, and on 1. 0-8-1865, the issue; were framed. The case was adjourned to 22-11-1965 for defendant s evidence. It was again adjourned to 25-1-1966, then to 10-3- 1966, then to 5-4-1966 and then to 18-5-1908. According to the petitioner (defendant), since the respondent (plaintiff) did not mention in his plaint about the amounts payable by him to the respondent (plaintiff), the petitioner (defendant) made an application on 27-7-1966 under Order 26, Rule 4 of the Code of Civil Procedure, for examination of a clerk of the Regional Settlement Commissioner, Lucknow, by means of interrogatories. The said application was granted on 1-9-1966, and it was directed by the lower Court that the commission was returnable before 31st October, 1966. The petitioner (defendant) deposited the necessary commission fee on 2-9-1966. On 4-10-1966, the said commission was received by the District Court, Lucknow. As the commission was not returned by 31-10-1966, the lower Court sent a reminder on 28-12-1966 to the District Court, Lucknow, but no reply was received. It appears the lower Court had to adjourn the matter, awaiting the commission, on 8 or 9 occasions, and the last of the adjournments "as for 17-7-1967. On that date, the petitioner (defendant) did not appear, and the Court ordered setting down the defendant as ex parte. But, on a subsequent application by the petitioner (defendant), the said order setting down the defendant as ex parte was set aside on 27-7-1967. ( 5 ) THE commission Was not received back even by that date. Therefore, on 28-7-1967, the lower Court passed the order which is now sought to be revised. In that order, the lower Court stated that since 1-9-1966, the date on which the order issuing the commission was passed, 10 months had elapsed and the commission had not been returned though none of the parties was responsible for the same, and that in the circumstances, the commission already issued was cancelled. In that order, the lower Court stated that since 1-9-1966, the date on which the order issuing the commission was passed, 10 months had elapsed and the commission had not been returned though none of the parties was responsible for the same, and that in the circumstances, the commission already issued was cancelled. By the same order the lower Court directed that a fresh commission should go from Delhi to record the statement of the witness with prior notice to the said witness about the date of the visit, that Shri R. D. Mahant, Advocate, Delhi, was appointed as Commissioner to visit Lucknow to record statement of the aforesaid defence witness, and that the statement should be recorded on 14-8-1967. THE order of the lower Court further provided that the respondent (plaintiff) could cross-examine the witness on the spot or might furnish cross-interrogatories, that the Commissioners fee was fixed at Rs. 200, and that the case should come up on 32-8-1967 for report of the commission. The order further provided that on failure to pay the fee by the petitioner (defendant) within seven days of the date of the order, the appointment of the commission should be deemed to stand cancelled, and that the further proceedings in the suit should continue. It is against this order that the present Civil Revision was filed in this Court by the defendant. ( 6 ) SHRI K. K. Mehra, the learned counsel for the petitioner, raised three contentions, viz. ; (1) That the lower Court had no jurisdiction to cancel its earlier order suo motu; (2) That there was no provision in the Code of Civil Procedure which conferred any such jurisdiction upon the lower Court; and (3) That the lower Court had no jurisdiction to cancel the earlier order and pass an order issuing a fresh commission even under Section 131 of the Code of Civil Procedure. ( 7 ) THE contentions Nos. 1 and 2 may be considered together. Order 26, Rule 2, provides that an order for the issue of a commission tor the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined. Order 26, Rule 4, enumerates the persons for whose examination the commission may issue. Order 26, Rule 4, enumerates the persons for whose examination the commission may issue. Order 26, Rule 7, provides that where a commission has been duly executed, it shall be returned, together with the evidence taken under it, to the Court from which it was issued. The argument of Shri Mehra is that while under Order 26, Rule 2, a Court may suo motu issue a commission tor examination of a witness, it cannot cancel, of its own motion, an order made by it earlier tor the issue of a commission, and that there is no provision in the Code of Civil Procedure which empowers the Court to do so. IT cannot be disputed that where a power to issue an order like the one in question is conferred, that power includes a power, exercisable in the like manner, to vary or rescind that order, on the principle laid down under Section 21 of the GeneralClauses Act. So the lower Court could validly cancel, as it did, the earlier order made by it. Order 26, Rule 2, clearly provides that the Court could make an order suo motu for the issue of a commission. Consequently, the Court could also suo motu cancel that order. Of course, the Court would not, without sufficient cause or reason, vary or cancel any order passed by it. In the present case, the lower Court waited for about ten months, and yet the commission was not returned. Any further waiting would have resulted in unnecessary delay in the prosecution of the suit. There was thus sufficient reason for the Court to cancel its earlier order and direct the issue of a fresh commission. ( 8 ) IN Chettyar v. Maung-Ba Chit, AIR 1930 Rang 315, it was held by a Division Bench of the High Court of Rangoon an follows : "i do not think that it can be held that a Judge has not the power to alter an order of his predecessor with regard to the issue of a commission Such an order is not a final "no and it relates more to the routine of the case than to the merits of the case. There can be no possible doubt that a Judge can alter an order passed by his predecessor with regard to the framing of issues, an order for examination of witnesses, adjournments and so forth. There can be no possible doubt that a Judge can alter an order passed by his predecessor with regard to the framing of issues, an order for examination of witnesses, adjournments and so forth. and, therefore, I see no reason why he should not alter an order passed by his predecessor with regard to the issue/or non-issue of a commission. " IF a Judge can alter an order of his predecessor with regard to the issue of a commission as held in the above case, he cannot be said to have no power or jurisdiction to alter or cancel an earlier order passed by himself, when the earlier order was a procedural one and no finality can be said to have attached to it. In any case, when circumstances, subsequent to the passing of the said order, require that a variation or cancellation is necessary, there can be no legal objection or bar to the variation or cancellation of the said order by a fresh order. ( 9 ) IN Khan Mohd. Kassimbhoy v. Bridhi Chand, (1905) 9 Cal WN (SN) 268, (the decision is said to have not been reported fully), an order was made on the application of the plaintiff for a commission to examine certain witnesses. The defendants were not represented before the Commissioner, with the result that the witnesses examined on behalf of the plaintiff were not cross-examined on behalf of the defendants. The Commissioner duly executed and returned the commission to the Court. The defendants thereafter applied for an order sending back the commission to the Commissioner to enable the defendants to cross-examine the aforesaid witnesses, or in the alternative, tor the issue of a fresh commission tor that purpose. The High Court ordered the issue of a fresh commission for the cross-examination of the witnesses. This decision illustrates that even where the earlier order of the Court was duly given effect to, the Court could reopen and direct the issue of a fresh commission for the same purpose. ( 10 ) SHRI V. B. Andley, the learned counsel for the respondent, also relied on the decision in Nazir Singh v, Lakhu Ahir, AIR 193s All 422. ( 10 ) SHRI V. B. Andley, the learned counsel for the respondent, also relied on the decision in Nazir Singh v, Lakhu Ahir, AIR 193s All 422. In that case, it was held by Niamatullah, J. , that there is no error of law in appointing more than one Commissioner, and that if the report of one Commissioner is unsatisfactory in certain respects, it is permissible for the Court to remit the case to the same Commissioner or to appoint another Commissioner. ( 11 ) TO the same effect are the decisions in Shib Charan Sahu v. Sarda Prasad, AIR 1937 Pat 670 and Deb Narain Kundu v. Amrita Lal Sil, AIR 1938 Pat 421, which were also relied upon by the learned counsel for the respondent. But, the above three decisions relate to the issue of a commission for local investigation. In the case of commission for local investigation. Order 26, Rule 10 (iii) itself provides mat where the Court is, tor any reason, dissatisfied with the proceedings of the Commissioner, it may direct such further enquiry to be made as it shall think fit. Shri Mehra argued that the said three decisions cannot apply to the facts of the present case, as there is no specific provision regarding the commission for examination of witnesses similar to the provision in Order 26, Rule 10 (iii ). There is force in this submission, and no reliance need be placed on the said decisions for the purposes of this case. ( 12 ) THE third contention ot Shri Mehra was that the order ot the lower Court could not be passed even under Section 151 of the Code of Civil Procedure. I have already held above that a Court has jurisdiction to cancel suo motu its earlier order tor the issue of a commission for the examination of witnesses, and issue a fresh commission for the same purpose, if sufficient reasons exist. Even otherwise, in my opinion, the Court has inherent jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court as provided in Section 151 of the Code of Civil Procedure. Even otherwise, in my opinion, the Court has inherent jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court as provided in Section 151 of the Code of Civil Procedure. When, as in the present case, the commission issued by the lower Court remained incomplete, and no reply even was received from the Court to which this commission was sent, and the proceedings in the lower Court were getting delayed for a considerable time, it was but just and equitable that the lower Court should cancel its earlier order and pass a fresh order tor the issue of a commission. If the Court is not to have such power, either under a specific provision in the Code or under its inherent power saved by Section 151 of the Code of Civil Procedure, it might enable persons so minded, to abuse the process of the Court and even flout or render ineffective the orders of the Court. ( 13 ) IT was held in Adit Prasad v. Ramharaldi Ahir, AIR 1925 Pat 435 (2), that "if the statute says that a thing should not be done. Section. 151 cannot vest the Court with the power to direct that it should be done; but when and where there is doubt and difficulty in applying the other provisions of the Code to the facts of a particular case. Section 151 should be invoked. I respectfully agree with the above view. ( 14 ) SHRI Mehra cited the decision of the Supreme Court in Padam Sen v. State of Uttar Pradesh, AIR 1961 SC 218 . In that case, the Supreme Court held that "the inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and, therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognised that the inherent power isnot to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code. It is also well recognised that the inherent power isnot to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code. " THESE observations clearly support the view taken by me above. The Supreme Court, however, on the facts of the particular case held that the "impugned order in that case appointing a Commissioner for seizing the plaintiff s books of account cannot be said to be an order which was passed by the Court in the exercise of its inherent powers. " IN that context it was observed that "the inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Court for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of in herent powers of the Court in the (natters of procedure, which powers have their source in the Courts possessing all the essential powers to regulate its practice and procedure. " In that view, the Supreme Court held that the impugned order in that case appointing a Commissioner to seize the plaintiff s account books was an order passed without jurisdiction and was, therefore, a null and void order. These latter observations are not applicable to the facts of the present case. But, as already stated, the earlier observations extracted above, show that the view taken by the High Court of Patna and by me is correct. ( 15 ) FOR the above reasons, I hold that the lower Court had jurisdiction to cancel its earlier order and issue a fresh commission as it did. The Civil Revision is, therefore, dismissed. In the circumstances I make no order as to costs in this revision petition.