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2009 DIGILAW 290 (KER)

Ambrose @ Lalan v. Yesudas

2009-03-24

K.T.SANKARAN

body2009
Judgment :- K.T. Sankaran, J. The question involved in this Writ Petition is whether under Rule 9 of Order XXVI of the Code of Civil Procedure the court has power to appoint a Commissioner for local inspection of the property in dispute before the written statement is filed by the defendant. 2. The Writ petitioners filed O.S.No.60 of 2009 before the Munsiff’s Court, Kochi, against the respondents for a permanent prohibility injunction restraining the defendants from trespassing upon the plaint A schedule property or causing any obstruction “in the gap on the eastern side of A schedule item numbers 1 and 2, by putting up any structures in the gap on the south western sides of plaint A schedule item No.1, north eastern portion of A schedule item No.2, i.e, in between the compound wall of the plaint A schedule and the western compound wall of the plaint A schedule and the western compound wall of the first defendant”. The property of the plaintiffs lies on the western side of the property belonging to the defendants. The plaintiffs filed an application for temporary injunction. The court below granted interim injunction. The defendants entered appearance. They filed an application for appointment of a Commissioner for local inspection of the property. In the affidavit filed in support of the application, the defendants stated that while constructing the compound wall on the western side of their property, they had left out a portion having a width of 1.5 .mtrs. For the purpose of providing a way to the northern property. It would appear that this small piece of land is the disputed property. The defendants contended that it is necessary to measure out the properties of the parties with reference to their title deeds in order to find out whether the disputed portion belongs to the plaintiffs or the defendants. According to the defendants, the properties are to be measured with reference to the title deeds and survey records. The application was opposed by the plaintiffs. They denied the contention that while constructing the compound wall, the defendants left out a portion of land having a width of 1.5 mtrs. On the western side of the compound wall. The plaintiffs, however, contended that they have no objection to measure out the properties. But, for the purpose of collecting evidence, the Commissioner cannot be appointed, even before filing the written statement by the defendants. On the western side of the compound wall. The plaintiffs, however, contended that they have no objection to measure out the properties. But, for the purpose of collecting evidence, the Commissioner cannot be appointed, even before filing the written statement by the defendants. 3. Thecourt below allowed the application for appointment of Commission. The decision of this Court in John Vs. Kamarunnissa (1987 (2) KLT 249) was relied on by the court below. The order passed by the court below appointing the Commissioner is under challenge in this Writ Petition filed by the plaintiffs. 4. Thelearned counsel for the petitioners contended as follows: Rule 9 of Order XXVI provides for appointment of a Commissioner for the purpose of elucidating any matter in dispute. A matter in dispute is a matter where the dispute arises on the pleadings, which is capable of being considered for framing an issue. For that purpose, it is necessary to file a written statement. The counsel referred to Rule 1 of Order VI of the Code of Civil Procedure which states that “pleading” shall mean plaint or written statement. 5. The learned counsel appearing for the respondents/defendants contended that they have filed a detailed counter affidavit in the application for temporary injunction in which their defence is clearly disclosed. The counsel submits that the application for appointment of Commissioner is not to fish out evidence. He submits that if on proper measurement, it is made out that the property belongs to the plaintiffs, the defendants need not contest the suit unnecessarily. 6. Rule 9 of Order XXVI reads as follows: “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”. The expression “any matter in dispute” occurring in Rule 9 of Order XXVI need not necessarily be a matter which is capable of being raised as an issue. Issues arise on the pleadings. The expression “any matter in dispute” occurring in Rule 9 of Order XXVI need not necessarily be a matter which is capable of being raised as an issue. Issues arise on the pleadings. The plaint and written statement constitute the pleadings. For deciding an issue in the suit, the court may think it necessary and expedient to appoint a Commissioner for making local inspection as provided under Rule 9 of Order XXVI. It does not mean that decision on an issue depends on local inspection. The decision on the issues in the case depends on the findings of the court on the basis of pleadings and evidence. A report submitted by the Commissioner shall be evidence in the case as provided in Rule 10 of Order XXVI. Report of the Commissioner may be taken as an aid to the court in arriving at the findings. Even in a case where the defendant has not filed written statement, it may become necessary for the court to pass orders in interlocutory applications like application for temporary injunction, appointment of receiver or any other interlocutory matter. At that stage, the parties can very well apply for appointment of a Commissioner for local inspection. To say that a Commissioner cannot be appointed before the written statement is filed by the defendants, would be to curtail the power vested in the court under Rule 9 Order XXVI. There is no fetter on the power of the court to appoint a Commissioner even before the written statement is filed by the defendant. Appointment of a Commissioner depends on the facts and circumstances may be necessary either at the instance of the plaintiff or at the instance of the defendant. The court may think it fit to get a Commissioner’s report on certain matters in dispute and the court has power to appoint a Commissioner at any stage of the litigation. The power of the court to appoint a Commissioner is not controlled or restricted by the existence or non existence of a written statement, at a stage prior to the stage where the written statement is required to be filed. The expression “any matter in dispute” occurring in Rule 9 applies even to a stage of the case before the written statement is required to be filed under Rule 1 of Order VIII of the Code of Civil Procedure. 7. The expression “any matter in dispute” occurring in Rule 9 applies even to a stage of the case before the written statement is required to be filed under Rule 1 of Order VIII of the Code of Civil Procedure. 7. If the contention that the court has no power to issue a Commission for local investigation at the instance of a defendant unless and until he files the written statement is accepted, it may work out injustice. Various facts and circumstances may arise warranting appointment of a Commissioner even before the defendant files his written statement. 8. In John Vs. Kamarunnissa (1987 (2) KLT 249) it was held thus: “Order XXVI Rule 9 C.P.C. enables the court to depute a commission for local investigation whenever it considers that it is necessary 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 of annual net profits. The contention of the plaintiff is that the defendants have not filed written statement and therefore no dispute existed at the time when the commission application was allowed by the court. There is no merit in the above contention. If that approach is adopted it would not be possible for a defendant to immediately bring to the notice of the court essential facts and materials in his favour by taking out a commission. For filing written statement defendants will have to consider ever pros and cons involved in the suit and he will have to go through the documents relied on by the plaintiff or to be relied on by him. For that it would necessarily take time. When defendant receives summons of a case or comes to know of a suit instituted against him he can immediately rush to the court and ask for a commission to be deputed to make local inspection. If the court is to wait till written statement is filed the defendant is likely to be deprived of the precious opportunity of bringing facts and materials to the notice of the court which are of great relevance for proper and just decision of the case. In certain cases urgent commission will be the need of the hour. Defendant’s right to take an urgent commission cannot be defeated on the ground that he has not filed written statement”. 9. In certain cases urgent commission will be the need of the hour. Defendant’s right to take an urgent commission cannot be defeated on the ground that he has not filed written statement”. 9. I am in respectful agreement with the view taken in the decision in John Vs. Kamarunnissa (1987 (2) KLT 249). The court below was justified in appointing a Commissioner. There is no ground for interference under Article 227 of the Constitution of India. Both the parties will be entitled to file work memo before the Commissioner. The Writ Petition is accordingly dismissed.