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2006 DIGILAW 275 (JK)

Manzoor Ahmed v. Assad-Ullah

2006-11-14

J.P.SINGH

body2006
1. This Civil Revision is directed against order dated 04.05.2006 of Learned Munsiff, Banihal whereby he had appointed a Commission to visit the spot to record his findings, regarding the possession of the parties to the suit over the land, in dispute after recording the statements of at least two witnesses. FACTS LEADING TO THE FILING OF THE REVISION. 2. In a suit for Permanent Prohibitory Injunction restraining 1st to 4th respondents from interfering in the possession of the petitioners and 5th respondent over land measuring 14 marlas comprised in Khasra No.995/03 situated at village Nagam, Tehsil Banihal, an application seeking appointment of a Commission, appears to have been filed by the 1st to 4th respondents. This application, as it appears from the order recorded on the application itself was ordered to be taken up on 10th of March 2006. This application, however, does not appear to have been taken up for consideration on 10th of March, when the suit was adjourned to 16th of March when the counsel for the parties submitted that there was no need to record the statements of the parties to the suit. The suit was thereafter adjourned to 7th of April for production of documents. Learned Presiding Officer was not holding the court on 7th of April 2006, the case was accordingly fixed for 15th of May 2006. 3. Another application appears to have been filed by 1st respondent Assad Ullah seeking orders for appointment of a Commission. Learned Munsiff, Banihal, without hearing the petitioners appears to have taken up this application when the suit had been slated for further proceedings on 15th of May 2006. He accordingly recorded an order on this application which reads thus:- "Advocate M.D. Singh is appointed as Commission. He will go on spot and give findings regarding the possession of the party by recording the presence of at least two witnesses by evoking both parties on spot. The expenses of lawyer shall be borne by Petitioners have assailed order dated 04.05.2006 in File No. 58/Civil of Munsiff, Banihal whereby he has appointed a Commission for visiting the spot, recording findings on the basis of evidence which may be produced by the parties before him." 4. It is this order of the Learned Munsiff which has been questioned by the petitioners in this Revision Petition. SUBMISSIONS By the petitioners 5. Mr. It is this order of the Learned Munsiff which has been questioned by the petitioners in this Revision Petition. SUBMISSIONS By the petitioners 5. Mr. Thakur, Learned counsel for the petitioners submits that the impugned order, besides being unreasoned was, illegal and unwarranted in view of the provisions of Order XXVI rule 9 of the Code of Civil Procedure which governs the appointment of Commissions during the currency of a suit. By the respondents. 6. Mr. Goja, Learned counsel for the contesting respondents urged that the impugned order does not decide any right of the parties to the suit and was thus not amenable to the revisional jurisdiction of the court. Learned counsel refers Harvinder Kaur and another vs. Godha Ram reported as AIR 1979 P&H 76. Findings. 7. I have considered the submissions of learned counsel for the parties. Learned counsel for the petitioners wants me to hold that any illegal order made by a court subordinate to the High Court was revisable regardless of its deciding or otherwise of some right of the parties to the suit. He supports his submission on the strength of the explanation appended to Section 115 of the Code of Civil Procedure. 8. I am, however, not impressed with this submission of Mr. Thakur. Explanation appended to section 115 of the Code cannot be read in any such fashion which may whittle down the meaning and import of the expression "case ...decided" appearing in section 115 (1) of the Code. 9. Retention of the expression "case decided" in the section with simultaneous introduction of the explanation with the expression "any order made" would require harmonious construction of section 115 of the Code as a whole. 10. "Any order made" would thus mean such order which decides some right of the parties at any stage of the proceedings in the suit. I accordingly while accepting the view of the High Court of Punjab and Haryana in Harvinder Kaurs case hold that only such orders would be amenable to the revisional jurisdiction of the High Court which decide some right of the parties at any stage of the suit. 11. The order impugned, does not, as such, decide any right of the parties. It may not thus be amenable to the revisional jurisdiction of this court. 12. 11. The order impugned, does not, as such, decide any right of the parties. It may not thus be amenable to the revisional jurisdiction of this court. 12. I, however, do not approve of the manner in which Learned Munsiff had appointed a Commission without hearing the petitioners and that too on a date other than the one to which the case had been slated. The order impugned appears to have been passed by the learned Munsiff on mere asking of one of the defendants when the earlier application of the respondents-defendants was still pending consideration. 13. That apart, Learned Munsiff had not spelled out any reason, for exercising jurisdiction under order XXVI of the Code of Civil Procedure. It is true that order XXVI of the Code provides jurisdiction to the court seized of a suit to appoint a Commission for local investigation, but this power may be exercised, only if the court had deemed it requisite or proper to appoint a Commission for elucidation of any matter in dispute or for ascertaining the market value of any property or for determining the mesne profits, damages or annual net profits. 14. Occasion to seek elucidation on or to determine the matters appearing in rule 9 of Order XXVI of the Code would arise, in a suit, after framing of issues, which stage had not yet reached in the suit pending before learned Munsiff, Banihal. 15. In order to decide as to whether it was requisite or proper to seek elucidation or to determine any one or the other things appearing in rule 9, the court is required to give reasons for arriving at its decision. An unreasoned order cannot partake the character of a judicial order. 16. The facts of the case, the manner in which the order had been passed on a date other than the one fixed in the suit, without hearing the petitioners-plaintiffs, and the unreasoned order of Learned Munsiff, passed without finding as to whether or not the requirements of rule 9 of order XXVI of the Code of Civil Procedure had been found to have been made out are all those factors, which require annulment of the order impugned in this petition. 17. I, therefore, deem it appropriate to exercise jurisdiction under Section 104 of the Constitution of J&K to set aside and quash the illegal order of Learned Munsiff, Banihal. 18. 17. I, therefore, deem it appropriate to exercise jurisdiction under Section 104 of the Constitution of J&K to set aside and quash the illegal order of Learned Munsiff, Banihal. 18. I order accordingly. This petition is accordingly disposed of on the above direction issued under section 104 of the Constitution of Jammu and Kashmir.