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2012 DIGILAW 2236 (RAJ)

Ishwari Dayal v. Civil Judge, Jr. Division, Deeg

2012-11-29

ALOK SHARMA

body2012
JUDGMENT 1. - A challenge in this petition has been made to the order dated 1st October, 2012 passed by the Civil Judge (Jr. Division), Deeg allowing an application filed by the plaintiff-respondent(hereinafter plaintiff) under Order 26 Rule 9 of CPC and appointing a Commissioner for local inspection of the property in dispute in the suit for permanent injunction. 2. Counsel for the petitioner- defendant (hereinafter defendant) submitted that the order impugned is an unreasoned and arbitrary order. He submits that discretionary orders albeit the prerogative of the courts should be reasoned orders. Counsel submits t hat the impugned order violates the requirement of Rule 67 of the General Rules (Civil ), 1986 (hereinafter the Rules of 1986) in failing to detail the points on which the Commissioner had to report. He further submits that an earlier report also following a local inspection by the Commissioner appointed under Order 26 Rule 9 of CPC had been obtained on 1st October, 2000 in respect of which no objection had been filed and this aspect of the matter was also not considered by the trial court. 3. Counsel for the plaintiff however, submits that an order under Order 26 Rule 9 of CPC is a discretionary order passed as the court was of the view that to facilitate the pronouncement of just and fair decision, the Commissioner's report was necessary. It is further submitted that this Court in the exercise of its jurisdiction under Article 227 of the Constitution of India ought not to interfere with an interlocutory order not determining the rights of the praties as held by the Hon'bl e Supreme Court in the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil, (2010) 8 SCC 329 . 4. I have heard the learned counsel for the parties and perused the petition including the impugned order. 5. No doubt, the jurisdiction of the is Court under Article 227 of the Constitution of India only to be sparingly exercised in respect of interlocutory orders as held by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty (supra). However, the limitations of the jurisdiction do not obstruct this Court in setting right irregular exercise of powers and passing of unreasoned ancillary orders under the provisions of CPC. However, the limitations of the jurisdiction do not obstruct this Court in setting right irregular exercise of powers and passing of unreasoned ancillary orders under the provisions of CPC. Order 26 Rule 9 of CPC indeed allows for appointment of a Commissioner for local inspection in situations where there is requirement of elucidating of any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual ne t profits. But, the jurisdiction of the court under Order 26 Rule 9 of CPC is not plenary but confined to situations dealt therein. It has to be only exercised for any of the purposes relevant. 6. Rule 67 of the Rules of 1986 provides that when issuing a Commission for local inspection the court shall define the points on which the 3 Commissioner has to report. Consequently, acting within provisions of Order 26 Rule 9 of CPC read with Section 67 of Rules of 1986, it was for the trial court to define the points on which the local commissioner was necessary and to be made. This was not done. Aside of above, the trial court has also not addressed the objection of the defendant to the appointment of Commissioner set out by the defendant on the ground that a commissioner having earlier been appointed and his unchallenged report of a local inspection of the property in dispute being on record before the trial court, no additional report of local inspection from another Commissioner could be sought. Fundamental to the adjudicatory process is passing of the reasoned orders. This is also absent in the impugned order. 7. Consequently, the petition is allowed and the impugned order dated 1st October, 2012 is quashed and set aside. The matter is remanded back to the trial court to address the application under Order 26 Rule 9 of CPC filed by the plaintiff by a reasoned order keeping in mind the requirement Rule 67 of the Rules of 1986. 8. At this stage, counsel for the plaintiff submits that the suit has been pending since 2000 and its adjudication has been delayed for one or the other reason. Counsel for the defendant submits that the plaintiff's evidence was only concluded on 31st August, 2012 and the delay is not attributable to the defendant. 9. 8. At this stage, counsel for the plaintiff submits that the suit has been pending since 2000 and its adjudication has been delayed for one or the other reason. Counsel for the defendant submits that the plaintiff's evidence was only concluded on 31st August, 2012 and the delay is not attributable to the defendant. 9. Be that as it may, as the suit for injunction has been pending for the last 10 years, I would direct the learned trial court to dispose of the said suit within a period of six months from the date of presentation of the copy of this order. Counsel for the defendant fairly has not opposed the aforesaid directions. It is made clear that adjournment s by the trial court not be casually granted. Adjournments shall only be granted when sought on a written application and if the trial court finds good reason therefore.Petition allowed. *******