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2007 DIGILAW 828 (AP)

Parepally Satyanarayana v. Vutukuri Meeneder Goud

2007-08-31

G.YETHIRAJULU

body2007
JUDGMENT This Revision Petition is filed by the first defendant against the order, dated 29-07-2004 in I.A.No.1097 of 2004 in O.S.No.302 of 2004 on the file of the learned Junior Civil Judge, Nalgonda, regarding the appointment of an Advocate Commissioner under Order 26 Rule 9 of C.P.C. 2. The plaintiff filed the suit for perpetual injunction restraining the first defendant from evicting him from the suit premises otherwise than in due course of law and for mandatory injunction directing the second defendant to break open the lock put to the suit premises. After ordering urgent notice in I.A.No.1090 of 2004 for the same relief, the plaintiff filed I.A.No.1097 of 2004 under Order 26 Rule 9 of C.P.C. for appointment of an Advocate Commissioner to break open the locks of the suit premises to record the physical features of the said premises and to ascertain facts of the possession of the suit schedule property. The lower Court passed the following order: "Heard. In view of the circumstances stated in the affidavit in support of the petition, Mr. K.V. Ramana Reddy, Advocate is appointed as Commissioner to make local inspection of the premises and to break open the lock provided petitioner is in occupation of the premises by the petitioner and to note down the physical features. His fee is fixed at Rs.1000/- payable on deposit of process. Issue warrant of commission on payment of process. Commissioner to report the proceedings and file his report by 04-08-2004." 3. Being aggrieved by the said order, the first defendant preferred the present Revision on the following grounds: 1) Appointing an Advocate Commissioner ex parte to break open the locks fixed by the petitioner amounts to decreeing the suit itself; 2) No reasons have been assigned for not issuing notice to the respondent as provided under Order 39 Rule 3 of C.P.C. and if the Court feels to dispense with the notice, sufficient reasons have to be recorded; 3) The order passed by the lower Court amounts to interference with the rights of the petitioner to continue to be in possession as lawful owner of the property; and 4) The Commissioner exceeded his powers conferred under the warrant and delivered possession without there being an order to that effect, therefore, the lower Court ought to have directed the Commissioner to redeliver the possession in favour of the petitioner without any further enquiry. 4. 4. The learned counsel for the first respondent submitted that the order of the lower Court was before service of the suit notice; that the Court felt that there was no necessity to order notice; and that there was no illegality in the order passed by the lower Court, therefore, he requested to dismiss the Revision petition. 5. The suit property is a mulgi. There is no dispute about the identity of the property. The plaintiff contended that it was originally taken by his father V. Krishna Murthy from the defendant's father on lease in or about 1967 on a monthly rent of Rs.400/-, which was enhanced from time to time. The original lessor i.e., the father of the first defendant died about 20 years back and the first defendant stepped into the shoes of the landlord and he was receiving rents from the plaintiff's father till 1989. When the plaintiff's father died, the plaintiff became the tenant and he was paying rents to the first defendant. It was further alleged that the first defendant developed a malicious intention to lease out the malgi to another person at higher rent and accordingly demanded the plaintiff for higher rent or to vacate the premises. The plaintiff refused to do so, therefore, the first defendant bent upon evicting the plaintiff from the suit premises with the help of the second defendant. On the prior day of filing of the suit, the first defendant brought the police personnel and got the door of the suit premises locked over the lock put by the plaintiff. Hence, the suit for the reliefs as mentioned above. 6. The first defendant filed a written statement in which he did not dispute the landlord and tenant relationship between them since about 40 years. It is also not disputed that the father of the plaintiff was running a wine shop and after him, the plaintiff also continued his business. The first defendant came to know that the plaintiff sublet the premises to one B. Suresh for running a Chinese Restaurant on a monthly rent of Rs.1,500/- since one year prior to the filing of the suit, therefore, he requested to dismiss the suit as there was no cause of action for filing the suit. 7. The first defendant came to know that the plaintiff sublet the premises to one B. Suresh for running a Chinese Restaurant on a monthly rent of Rs.1,500/- since one year prior to the filing of the suit, therefore, he requested to dismiss the suit as there was no cause of action for filing the suit. 7. The first defendant filed additional grounds on 10-11-2004 wherein he mentioned that from 01-08-2002, the plaintiff failed to pay the monthly rent on some pretext or other. He came to know that the premises was sublet to one B. Suresh on monthly Rent of Rs.1,500/-. Immediately, he approached the plaintiff and questioned about subletting the premises and demanded the payment of the arrears of rent and to vacate the premises. He wanted to settle the matter to set up a business, as he has no other premises at Nalgonda, therefore, he requested the plaintiff to vacate the suit premises. When the plaintiff failed to heed his request, he raised dispute before the elders of panchayat on 25-07-2004 in the presence of Municipal Chairperson and other elders. The plaintiff and his mother demanded that the first defendant should forego two years rent of Rs.28,800/- and pay Rs.1,00,000/- towards goodwill for vacating the premises. On the next day i.e., on 26-07-2004, again a panchayat was held in the presence of Komatireddy Anji Reddy and others and the mediators advised the first defendant not to insist for arrears of rent for two years from the plaintiff and the plaintiff was advised not to insist for goodwill amount of Rs.1,00,000/- and also advised to vacate the premises immediately. After two or three hours discussion, the plaintiff and the first defendant came to an understanding by accepting the advise of the elders. Accordingly, on the same day i.e., on 26-07-2004, the plaintiff took the first defendant and the elders to the suit premises and handed over the premises formally to this defendant, whereupon the first defendant has put up his lock to the said premises. The plaintiff and his subtenant B. Suresh agreed to take away the furniture lying in the premises by 15-08-2004 after securing some other premises. Thus, from 26-07-2004, the first defendant came into possession of the suit premises. But the plaintiff with a mala fide intention resorted to put another lock over the lock of the first defendant and approached the Court with false allegations. Thus, from 26-07-2004, the first defendant came into possession of the suit premises. But the plaintiff with a mala fide intention resorted to put another lock over the lock of the first defendant and approached the Court with false allegations. 8. From the averments of the written statement, there is a prima facie material to show that till 26-07-2004 i.e., prior day of the filing of the suit, the suit premises was in possession of the plaintiff. The contention of the plaintiff is that the first defendant got the door locked by the police, whereas the first defendant contends that when he put the lock, the plaintiff put another lock to the door to create problem to him. The first defendant did not give the details as to when they approached the elders, where the mediation took place, whether the plaintiff was also present in the mediation, at what time they went to the suit premises and at what time the door was locked. From the averments, there is a prima facie material that the furniture of the plaintiff is available in the malgi and there is lock of the plaintiff to the suit malgi. Who put the lock first and at what time and whether the plaintiff agreed to voluntarily vacate the premises etc. will be considered during the course of trial. The fact remains that there is a prima facie material in the written statement of the first defendant itself that he took possession of the premises "formally" on the assurance given by the plaintiff that the furniture will be taken away on 15-08-2004. Under those circumstances, the plaintiff filed an Application for appointment of a Commissioner to break open the locks of the suit premises and accordingly, the lower court appointed a Commissioner. 9. The learned counsel for the petitioner submitted that the appointment of a Commissioner to note down the physical features and to find out whether the plaintiff was in possession of the property amounts to an order directing the Commissioner to gather the information, which is not permitted under law, therefore, the appointment of the Commissioner itself is illegal and requested to cancel the order by directing to recall the warrant. In support of his contention, the learned counsel for the petitioner, relied on the following decisions: In BONGU RAMULU AND ANOTHER v. GUDUR NARENDER REDDY 1, a learned single Judge of this High Court held as follows: "In a suit for perpetual injunction, the court has to adjudicate as to who is in actual possession of the suit property as on the date of institution of the suit on the basis of oral and documentary evidence adduced by the parties and the said function cannot be entrusted to the Advocate Commissioner." In PUTTAPPA v. RAMAPPA 2, a learned Single Judge of Karnataka High Court held: "In a suit for injunction the question as to who is in possession of the property, is a matter to be decided by the Court on the basis of the evidence, either oral or documentary, to be adduced by the parties. That function cannot be delegated to a Commissioner who cannot find out as to who is in possession of the property. A Commissioner will not be in a position to determine the question as to who is in possession of the property when there is dispute between the parties regarding the same. Thus, a Commissioner cannot be appointed to find out as to who is in possession of the property and under O.26, R.9, C.P.C. a Commissioner can only be appointed to make local investigation to investigate the facts or other materials which are found in the property and to make a report in regard to that matter to the Court." In JANG SINGH v. BRIJ LAL 3, the Supreme Court held: "It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: "Actus curiae neminem gravabit"." The decision cited by the learned counsel in S.B. SINGH CO-OP. H.B. SOCIETY LTD. v. IMPROVEMENT TRUST 4 is not applicable to the facts of the present case. 10. There is no dispute about the proposition of law in the above decisions that the purpose of appointment of a Commissioner is not to gather information regarding the possession of the property in an injunction suit. 11. Order 26 Rule 9 of C.P.C. reads as follows: "O.26 R.9.Commissions for local investigations: In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." From the above provision, it is clear that the Court has power to appoint a Commissioner for local inspection of the suit premises, therefore, it cannot be said that the Court has no power to appoint a commissioner for local inspection. 12. A Commissioner cannot be appointed to find out as to who is in possession of the property. But he can be appointed to make local investigation to ascertain the facts or other material which are found in the property and to make a report in regard to that matter to the Court. 12. A Commissioner cannot be appointed to find out as to who is in possession of the property. But he can be appointed to make local investigation to ascertain the facts or other material which are found in the property and to make a report in regard to that matter to the Court. The order of the lower Court was directing the Commissioner to make local inspection of the suit premises, to break open the lock provided that the petitioner is in occupation of the premises and to note down the physical features. The Commissioner filed a report mentioning that the property was identified in the presence of both the parties and he broke opened the lock and entered the suit premises and found some articles and furniture in the premises and noted the physical features. The Commissioner did not mention that the suit premises was handed over to the plaintiff. Unless he breaks open the lock, he will not be in a position to know the physical features of the malgi from outside. 13. After going through the entire material, I am convinced that the lower Court did not pass any orders on the basis of the report of the Commissioner. The Commissioner's report does not disclose any facts other than those admitted by the first defendant in the additional written statement. The petitioner requested this court to set aside the order of the lower court by directing recalling of warrant. But, since the warrant was already executed and report was filed and the report does not contain any material as to who was in possession of the property except observing the physical features and the articles present in the malgi. The lower Court passed the impugned order before the service of notice on the first defendant. The court can pass appropriate orders in the interest of justice ex parte before service of notice and it is a fundamental principle that the court should not pass any order in the absence of the opposite party when once the notice is served and party is on record. In the light of the above circumstances, I do not find any grounds to set aside the order passed by the lower Court. 14. Accordingly, the Revision Petition is dismissed not only on merits, but also on the ground that it has become infructuous due to execution of warrant. In the light of the above circumstances, I do not find any grounds to set aside the order passed by the lower Court. 14. Accordingly, the Revision Petition is dismissed not only on merits, but also on the ground that it has become infructuous due to execution of warrant. ?1 1998 (3) ALD 657 2 AIR 1996 KARNATAKA 257 3 AIR 1966 SC 1631 4 AIR 2000 SC 3589