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Himachal Pradesh High Court · body

2002 DIGILAW 133 (HP)

PAWAN KUMAR SOOD v. INDER KRISHAN MEHTA

2002-05-10

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J.—The petitioners/defendants (hereafter referred to as the defendants) have preferred this revision petition under Section 115 of the Code of Civil Procedure (hereafter referred to as the Code) against the order dated 21.2.2002 passed by the learned District Judge, Kullu in Civil Appeal No. 26 of 2001 titled Pawan Kumar Sood and another v. Inder Krishan Mehta, whereby he has appointed SDO (PWD), Manali as a Local Commissioner to visit the spot i.e. Plot Nos. 16 and 17 of Urban Estate, Manali and report qua boundary wall of Plot No. 17 regarding material used for construction of the wall, its depth, height and age and support his findings with reasons. 2. Brief facts leading to the presentation of this petition are that respondent/plaintiff (hereafter referred to as the plaintiff) constructed a residential house in Plot No. 17 in Model Town, Manali in the year 1984-85. At that time the adjacent plot No, 16 was vacant. As per the Zonal Plan the allottees of two adjacent plots were required to construct a common wall in between their plots after leaving 5 feet open space on each side of the common wall and the cost of construction of such wall was to be shared equally by the owners of the two plots. Plaintiff constructed 4 feet high wall in between Plot Nos. 17 and 16 and also left open passage of 5 feet on his side of the common wall. In December, 1998 when the plaintiff, who is absentee landlord, visited his house at Manali he found that the defendants, who had purchased Plot No. 16, had raised construction over the common boundary wall whereby the natural light and air to the house of the plaintiff had been blocked. He met the defendants and asked them to rectify their wrongful acts but of no avail. He, thus, instituted a suit for perpetual injunction restraining the defendants from raising any construction over the common boundary wall and for mandatory injunction for demolition of the wall raised by the defendants on the common boundary wall above the height of 4 feet. 3. Defendant Rajinder Pal, who was earlier the sole defendant in the suit, in his written statement claimed that he had no concern whatsoever with the disputed construction and Plot No.16. Defendant Pawan Kumar, who was subsequently added as a party defendant, resisted the suit. 3. Defendant Rajinder Pal, who was earlier the sole defendant in the suit, in his written statement claimed that he had no concern whatsoever with the disputed construction and Plot No.16. Defendant Pawan Kumar, who was subsequently added as a party defendant, resisted the suit. In his written statement, he raised so many objections and on merits denied the claim as raised in the plaint. 4. During the pendency of the suit, plaintiff moved an application under Order 26 Rule 9 of the Code for appointment of a Local Commissioner. The trial Court, however, dismissed the application. The suit of the plaintiff was finally decreed. 5. Aggrieved by the judgment and decree of the trial Court, defendants preferred an appeal which is presently pending disposal in the Court of the learned District Judge, Kullu. In the said appeal, the learned District Judge after hearing the parties came to the conclusion that with a view to properly appreciate the evidence on record, application, which was moved by the plaintiff in the trial Court for appointment of Local Commissioner, requires to be allowed as such a course would help in coming to the proper conclusion and to appreciate the evidence and accordingly appointed the Local Commissioner by the impugned order. 6. A preliminary objection regarding maintainability of the present revision petition has been raised and the learned Counsel for the parties had been heard on such objection. 7. It was contended by the learned Counsel for the plaintiff that the impugned order has been passed under Rule 9 of Order 26 of the Code, therefore, the present revision petition is not maintainable as the impugned order does not amount to final order disposing of the case. 8. On the other hand, it was contended by the learned Counsel for the defendants that a Single Bench of this Court has referred the question as to whether a revision lies against the order dismissing/allowing an application under Rule 17 and/or 17-A of Order 18 of the Code to a larger Bench and the decision of the larger Bench thereon is being awaited. Since by appointing a Local Commissioner under Rule 9 of Order 26 of the Code, the Court has virtually allowed leading of the additional evidence, therefore, the decision in the above referred question will have a material bearing on the question as to whether the present revision petition against an order under Rule 9 of Order 26 of the Code is maintainable or not. It was further contended that in any case the present revision petition is maintainable because the application which was dismissed by the trial Court has been allowed by the appellate Court. 9. There is no dispute that the application under Rule 9 of Order 26 of the Code was initially presented by the plaintiff before the trial Court which dismissed the same. However, such application has been allowed by the learned District Judge after hearing the parties during the pendency of the appeal and a Local Commissioner has been appointed as was prayed by the plaintiff in the application. Thus, the present revision petition is against the order allowing the application for appointment of a Local Commissioner under Order 26 Rule 9 of the Code. 10. It may be pointed out that the provisions of Rule 9 of Order 26 and those of Rules 17 and 17-A of Order 18 of the Code are meant to meet different situations and has nothing in common. Rule 9 of Order 26 of the Code provides a method whereby evidence can be collected by Local Investigations by a person appointed for the purpose by the Court to enable it to elucidate any matter in dispute, or ascertaining the market value of any property, or the amount of any mesne profits or damages etc. whereas under Rule 17 of Order 18 of the Code the Court has the powers to recall and examine a witness and Rule 17-A empowers the Court to permit a party to produce such further evidence which was not within its knowledge or could not be produced at the time of leading its evidence despite exercise of due diligence. Thus, the provisions of the aforesaid rules are distinct and are made to serve different purposes and have nothing in common. Thus, the provisions of the aforesaid rules are distinct and are made to serve different purposes and have nothing in common. Therefore, even if it is held by the larger Bench to which the question regarding the maintainability of the revision petition against allowing or disallowing an application under Rule 17 and/or 17-A of Order 18 of the Code is answered in the affirmative that will be of no help in deciding whether a revision petition will be maintainable or not against an order passed under Rule 9 of Order 26 of the Code. It is more so in view of the fact that the question regarding maintainability of a revision petition against an order allowing or disallowing an application under Rule 9 of Order 26 of the Code has already been decided by a Division Bench of this Court in Yash Paul Sood v. Devinder Parkash, 1999 (1) SLJ 237. 11. In Yash Paul Soods case (supra), the Court was to decide the following question: "Whether an order refusing to appoint or appointing a Local Commissioner under Order 26 Rule 9 Code of Civil Procedure is a case decided within the meaning of Section 115 of the Code of Civil Procedure?" After detailed references to the law relevant to answer the aforesaid question and considering conflicting judgments of this Court rendered by two learned Single Judges in different cases the Division Bench held as under: "Consequently, we are of the view that the order declining to allow an application for appointing a Local Commission filed under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure cannot be said to be an order, which would have the effect of finally disposing of the suit or other proceeding and if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it has been made. As rightly pointed out by the learned trial Judge also the object of appointing a Local Commission could not be for the purpose of collecting evidence in the suit and that the invariable rule is that an evidence of the witness is to be given only in Public Court and tested by cross-examination. As rightly pointed out by the learned trial Judge also the object of appointing a Local Commission could not be for the purpose of collecting evidence in the suit and that the invariable rule is that an evidence of the witness is to be given only in Public Court and tested by cross-examination. The petitioner is not, by the impugned order of rejection precluded from otherwise substantiating his claim by summoning for the production of the relevant records and examining the persons concerned with the preparation of such records and prove his case otherwise in accordance with law. For all the reasons stated above, we are of the view that the decision taken by the learned Single Judge, who decided the case reported in 1997 (1) SLJ 242, lays down the correct position of law in holding that an order rejecting an application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure is not revisable under Section 115 of the Code of Civil Procedure and we over rule the decision rendered in 1982 Sim. L.C. 85 (supra) taking a contra view, as not correctly decided one. The question referred to for the consideration and decision of the larger Bench is answered in the negative and against the petitioner." (Emphasis supplied) 12. In case Rajinder and Co. v. Union of India and others, (2000) 6 SCC 506, the Honble Apex Court held as under: "We cannot appreciate why the High Court interfered with that part of the order passed by the trial Court appointing a Commission for inspecting the site and to file a report and to measure the work done by the respondent. The learned Counsel for the appellants submits that the respondent will not be made responsible for the cost or expenses which may be involved in the Commission to file the report. The question whether the Commissioners report is finally acceptable or not would be decided by the Court dehors the order passed by the authority concerned. In the light of the said innocuous position it was not necessary for the High Court to alter the trial Courts order. The question whether the Commissioners report is finally acceptable or not would be decided by the Court dehors the order passed by the authority concerned. In the light of the said innocuous position it was not necessary for the High Court to alter the trial Courts order. We, therefore, set aside the impugned order of the High Court and restore the order of the trial Court in full measure, with the rider that this action will be without prejudice to the right of the parties to substantiate the respective contentions regarding the tenability or untenability of the Commissioners report and its conclusions." 13. The above decision of the Honble Supreme Court also lends support to the view taken by the Division Bench of this Court in Yash Pal Soods case (supra). 14. In view of the above settled position in law, the present revision petition is not maintainable. 15. As a result, this petition is dismissed. CMP No. 66 of 2002: In view of the dismissal of the revision petition, this petition is also dismissed and the ad-interim stay as granted on 8.3.2002 stands vacated. Petition dismissed.