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Madhya Pradesh High Court · body

2001 DIGILAW 672 (MP)

Chhaganlal v. Uma Shankar

2001-09-10

S.B.SAKRIKAR

body2001
ORDER 1. This order shall govern the disposal of Civil Revision No. 396/2001 and Civil Revision No. 422/2001 filed by the petitioners aggrieved by the impugned order dated 5.3.2001 and 17.1.2001 passed by 12th Addl. District Judge, Indore, in Civil Suit No. 1-A/99 thereby rejecting the applications filed on behalf of the applicants under order 19 rule 2 of CPC and order 47 rule 1 of CPC, and allowing the application filed on behalf of respondents No. 1 to 8 for review of the order dated 21.12.2000 under order 47 rule I of CPC. 2. Briefly stated the facts of the case are that on the directions of the Apex Court at the stage of drawing up of the final decree proceedings, two Commissioners were appointed for taking the accounts of the parties and submit their reports. The two Commissioners so appointed on examination of the accounts gave different reports which are contrary to each other. In view of the contrary reports of the two Commissioners the trial Court by order dated 10.10.2000 directed appointment of 3rd Commissioner with the consent of the parties. The parties did not agree for the appointment of common Commissioner, who could be appointed as 3rd Commissioner and filed certain applications for giving directions to the Commissioner on different points for submitting his report. Those applications were dismissed. Thereafter the non-applicants-plaintiffs have filed application for review of the order dated 10.10.2000. The learned trial Court considered the said application and by order dated 21.12.2000 allowed the said application of review filed on behalf of the non-applicants-plaintiffs and recalled the order of appointment of 3rd Commissioner for examination of the accounts of the parties. Civil Revision No. 396/2001 is filed on behalf of the applicants-defendants against the aforesaid order of the trial Court. After the order dated 21.12.2000 an application was filed on behalf of the applicants under order 19 rule 2 of CPC for grant of permission to cross examine the Commissioner who gave the report against the applicants. The learned trial Court on considering the application dismissed the same by order dated 5.3.2001. Aggrieved by the aforesaid order of the trial Court the applicants have filed Civil Revision No. 367/2001. 3. The learned trial Court on considering the application dismissed the same by order dated 5.3.2001. Aggrieved by the aforesaid order of the trial Court the applicants have filed Civil Revision No. 367/2001. 3. Before filing the aforesaid revision petitions, the applicants-defendants have filed application for review of the order dated 21.12.2000 passed by the trial Court recalling the order of appointment of 3rd Commissioner under the provisions of order 47 rule 1 of CPC. The said application was dismissed by the trial Court by order dated 17.1.2001 and a revision against the said order is Civil Revision No. 422/2001. 4. I have considered rival submissions of the learned counsel for the parties on the aforesaid revisions and also perused the records and the impugned orders of the trial Court. 5. Civil Revision No. 422/2001 was filed against the order of dismissal of the application filed by the applicants for review of the order dated 21.12.2000 passed by the trial Court on the application for review of the order dated 10.10.2000 passed by the trial Court. The application for review of the order which is passed on the review application of the other side itself is not maintainable. As such the order dated 17.1.2001 requires no interference exercising powers under section 115 of CPC. The Revision Petition also deserves to be dismissed on the ground that subsequently the applicant-defendants have also filed a revision petition against the said order dated 21st December, 2000 pending before this Court as Civil Revision No. 396/2001. As such Civil Revision No. 422/2001 stands dismissed. 6. In connection with Civil Revision No. 367/2001, the learned counsel for the petitioners placing reliance on the decisions of this Court in case of Sitaram v. State of M.P. [1978 (2) MPWN 218], in case of Hukum Singh v. Lajja [1973 JLJ SN 78] and in case of Mohd. Abdul v. Kundal [1960 MPLJ SN 218] has submitted that the Court is competent to direct cross-examination of the Commissioner under the provisions of order 19 rule 2 of CPC. In the present case as the reports of two Commissioners are contradictory to each other, the trial-Court should have allowed the application filed by the applicants under order 19 rule 2 of CPC. 7. In the present case as the reports of two Commissioners are contradictory to each other, the trial-Court should have allowed the application filed by the applicants under order 19 rule 2 of CPC. 7. On perusal it emerged that the trial Court dismissed the application mainly on the ground that the reports of the two Commissioners are filed in the Court and on considering the arguments of the learned counsel for the parties the Court shall decide that which report of the Commissioner or any part of the said report is required to be accepted and for this purpose the cross-examination of the Commissioner was not considered necessary. I do not find that the trial Court has committed any illegality in dismissing the application filed on behalf of the applicants under order 19 rule 2 of CPC permitting cross-examination of the Commissioner who gave the adverse report to the applicants. The judgments of this Court relied on by the learned counsel for the applicants are on the point when the cross-examination of the Commissioner was permitted who submitted his report after inspection of the disputed spot. In this case the Commissioners were appointed to submit their reports on perusal of the accounts of the parties to help the Court for drawing up a final decree. As such the Commissioners in this case are appointed only to assist the Court for passing an order for drawing up of the final decree. As such in the case on hand the cross-examination of the Commissioner on his report is not necessary and no interference is required in the impugned order of the trial Court dated 5.3.2001 dismissing applicants' application under order 19 rule 2 of CPC in exercise of the powers u/s 115 of the CPC. 8. In connection with Civil Revision No.396/2001, the learned counsel for the petitioners invited my attention to the provisions of order 47 rule 1 of CPC and submitted that in view of the facts of the case the trial Court has no occasion and jurisdiction to review its own order dated 10.10.2000 passed by the trial Court for appointment of the 3rd Commissioner. In this respect the learned counsel submitted that under order 47 rule 1 of CPC the Court which passed the order under consideration is competent to review the said order if on the application of any of the parties is filed on the grounds of discovery of some new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time, when the decree was passed or on account of some mistake or error found in the order apparent on the face of the record, was established. On perusal it emerged that when the trial Court, passed order dated 10.10.2000 it was found that the two Commissioners appointed by the Court submitted two different reports contradictory to each other and in that circumstance trial Court ordered for the appointment of 3rd Commissioner and directed the parties to suggest the name of a common Commissioner of their choice. But after the lapse of about two months time the parties failed to suggest the name of a common Commissioner who can be appointed as 3rd Commissioner to resolve the matter in dispute and in such circumstances the trial Court allowed the application filed on behalf of the non-applicants-plaintiffs for review of the order dated 10.10.2000 and passed the order impugned recalling the order of appointment of the 3rd Commissioner. Under the provisions of order 47 rule 1 of CPC the Court is also competent to exercise the powers of review if any other sufficient cause is made out for exercising such powers. In this case the trial Court in the impugned order mentioned the reasons for review of the order dated 10.10.2000. In my considered opinion, the reasons stated by the trial Court for review of the order dated 10.10.2000 were sufficient for exercising the powers of review under order 47 rule 1 of CPC. In view of the facts and circumstances of the case on hand and the provisions of order 47 rule 1 of CPC, I do not find that the trial Court has committed any illegality or exceeded its jurisdiction available to the Court under the aforesaid provisions. As such no interference appears necessary in the order impugned of the trial Court dated 21.12.2000 in exercise of the powers u/s 115 of CPC. 9. As such no interference appears necessary in the order impugned of the trial Court dated 21.12.2000 in exercise of the powers u/s 115 of CPC. 9. As a result of the foregoing discussions all the three revisions filed on behalf of the applicants are devoid of any merit and substance and deserve the fate of dismissal. Thus, Civil Revisions No. 367/2001, 422/2001 and 396/2001 are accordingly dismissed. No order as to the costs. Copy of this order be placed on the record of the connected revisions No.422/2001 and 396/2001.