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2008 DIGILAW 302 (JK)

Deepanker Singh Manhas v. P. S. Manhas

2008-07-21

SUNIL HALI

body2008
1. This revision petition has been preferred against order dated 4.9.2006 of City Judge, Jammu, whereby the trial court has rejected the application of the petitioner-plaintiff for appointment of Commissioner for making spot inspection of the suit property. The grievance set out in the application was that inspite directions from the court to maintain status quo on spot, the defendant- respondent has started imparting education to the children in the suit premises. The application was resisted by the defendant-respondent on the ground that the application under Order 39 Rule 7 CPC is not maintainable, as the order of injunction or status quo was not in vogue. It is stated that the application for appointment of Commissioner was to be made under order 26 CPC not under Order 39 Rule 7 CPC. 2. The learned trial court after hearing the parties dismissed the application of the petitioner-plaintiff as being not maintainable. The trial court has held that grounds did not exist in the application for appointment of Commissioner under Order 39 Rule 7 CPC, as the order of status quo was not in force. 3. I have heard learned counsel for the parties. 4. The petitioner-plaintiffs grievance in the suit is that property in dispute is jointly owned by the parties and the defendant-respondent has been converting this property for running commercial institution. The application for grant of temporary injunction was filed and the order of status quo was passed. The said order of status quo was passed on 3.5.2006 and extended vide orders dated 12.5.2006 and 9.6.2006. Thereafter order has not been extended. This fact is not disputed by the petitioner-plaintiff. The defendant-respondent has denied that they are running educational institute, but wife of the defendant-respondent is imparting coaching to the children of age group of 3 to 5 years for their admission in different Institutions/Schools. 5. There are two provisions for appointment of Commissioner, one under Order 26 and other under Order 39 Rule 7 CPC. Both the provisions can be invoked in two different circumstances. The Commissioner can be appointed under Order 26 Rule 9 CPC, where the court admits such local investigation is required for proper elucidation of any matter in dispute. 5. There are two provisions for appointment of Commissioner, one under Order 26 and other under Order 39 Rule 7 CPC. Both the provisions can be invoked in two different circumstances. The Commissioner can be appointed under Order 26 Rule 9 CPC, where the court admits such local investigation is required for proper elucidation of any matter in dispute. Under Order 39 Rule 7 CPC, the court has the power to appoint Commissioner for the purpose of detention, preservations, inspection of any property, which is subject matter of such suit as to which any question may arise therein. The power under Order 26 Rule 9 CPC is to be exercised for the purpose of seeking elucidation in any matter that is in dispute. The power under Order 39 CPC directs the inspection by a local Commissioner only for preservations or for inspection of any property. These powers are exclusively different. Any court competent in this regard can direct inspection, which is required for adjudication in such disputes and which the court may not be able to find out from the witnesses. The court has the power to seek protection, detention and inspection, which in other words means that local Commissioner is to be appointed, if there is any lis pending and to protect the same. In the present case, the grievance of the petitioner-plaintiff is that the property is being utilized by the defendant-respondent for running of commercial institution. The defendant-respondent has denied this fact that he is running any such institute, but his wife is providing coaching to the children from age group of 3 to 5 years. This fact can be clearly proved or disproved by the parties during the course of trial. It is not the case of the petitioner-plaintiff that property is being damaged or his lis in the property is being destroyed. The arguments of the learned counsel for the petitioner-plaintiff are misconceived. 6. The other aspect of the matter is that there is no order of injunction existence on the date when the application was decided. Even though the application for temporary injunction is pending before the trial court, but there is no order of injunction in existence. This ground will also dis-entitle the petitioner-plaintiff for seeking any relief. It is assumed that continuation of injunction order and violation thereto, the application under Order 39 Rule 7 CPC can be considered. 7. Mr. Even though the application for temporary injunction is pending before the trial court, but there is no order of injunction in existence. This ground will also dis-entitle the petitioner-plaintiff for seeking any relief. It is assumed that continuation of injunction order and violation thereto, the application under Order 39 Rule 7 CPC can be considered. 7. Mr. Shukla, learned counsel for the petitioner has relied upon AIR 1989 Orissa 214, entitled, Subal Kumar Dey vs. Purna Chandra Giri and others, AIR 1997 Calcutta 80, entitled, Allahabad Bank vs. Sourendra Nath Shah, 2007(1) JKJ 66(HC), entitled Janak Raj vs. Rashpal Chand and ors. and AIR 1986 Madras 33, entitled, Ponnusamy Pandaram vs. the Salem Vaiyappamalai Jangamar Sangam. 8. After going through the above cited law, I find that these judgments are not attracted to the present case. As already stated hereinabove that in order to invoke Order 39 Rule 7 CPC shown to be substantive order of injunction either have been violated or not being complied with by the defendant-respondent, in that eventually the local commissioner can be appointed to protect the lis in the property, which would ensure preservation and detention of the property. 9. In the present case, there is no such complaint made by the petitioner-plaintiff, and his only grievance is that commercial institution is being run by the defendant-respondent. The defendant-respondent has denied of running of such commercial institute, but has admitted that a coaching centre is being run by his wife for the children of age group of 3 to 5 years. It is a matter of proof as to whether any Commercial activity is carried out by the defendant-respondent in the premises, which in my opinion can be proved during the course of trial when the parties lead their evidence. 10. I find no force in this petition. It is, as such, dismissed. 11. Record of the trial court be sent back.