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2014 DIGILAW 2293 (ALL)

Sharad Chandra Tewari v. Ram Kumar Tiwari

2014-08-01

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Rama Shanker Singh, for the petitioners and Sri R.P. Misra-II, for the respondents. 2. The writ petition has been filed for quashing the order of Additional Civil Judge (SD) dated 11.12.2013, rejecting the application of the petitioners for summoning Advocate's Commissioner for recording his statement as witness and order of District Judge 14.03.2014, dismissing the revision filed by the petitioners from the aforesaid order. 3. Kaushal Kishore Tewari (now represented by the petitioners) filed a suit (registered as R.S. No. 63 of 2000) for permanent injunction, restraining Har Prasad Tewari and others ( the defendants-respondents) from interfering in his possession over plot 366 situated in village Kathwara, pargana Mohana, district Lucknow and for realization of Rs. 5000/-along with interest as damages for demolishing structures lying upon the land in dispute. In the plaint, the plaintiff stated that he was owner of the land in dispute and constructions lying upon it, which was bounded by boundary wall. In the southern side of plot 366, house of the defendants was lying on plot 367. Main gate of the house of the defendants was in southern side and there was one door in eastern side of their house. In order to grab the land of the plaintiff, the defendants demolished wall of the house of the plaintiff in the night of 27/28.12.1999 and they were removing the bricks and wastage from the spot. 4. Along with the plaint, the plaintiff also filed and application for interim injunction and another application for issue of Advocate Commissioner for service of notice, interim order on the defendants and for inspection, measurement of the disputed property and making site plan and note the various things lying over the land in dispute. Trial Court by order dated 23.02.2000 issued Advocate Commissioner, who inspected the spot on 27.02.2000 and submitted his report dated 27.02.2000. The defendants filed their objection against the Commissioner's report dated 27.02.2000. Trial Court by order dated 26.11.2002, held that as the commissioner was issued under Order 39 Rule 7 C.P.C. and not under Order 26 Rule 9 C.P.C. as such it is not proper to confirm the report but the report was kept on record. 5. The petitioners filed an application dated 07.09.2013 for summoning Advocate's Commissioner for recording his statement as witness. The defendants filed their objection to the aforesaid application. 5. The petitioners filed an application dated 07.09.2013 for summoning Advocate's Commissioner for recording his statement as witness. The defendants filed their objection to the aforesaid application. The application was heard by Trial Court, who by order dated 11.12.2013, held that as by order dated 26.11.2002 the report was not confirmed but it was only kept on record. The order dated 26.11.2002 was not challenged by the plaintiff as such there is no justification for summoning Advocate's Commissioner and recording his statement as witness. On these findings the application was rejected. The petitioner filed a revision (registered as Civil Revision No. 64 of 2014) from the aforesaid order. The revision was dismissed by District Judge by the order dated 14.03.2014 on the ground that revision was not maintainable as filed against interlocutory order. Hence this writ petition has been filed. 6. The counsel for the petitioners submitted that the application dated 23.02.2000 was filed under order 26 Rule 9 C.P.C. for spot inspection, making measurement of the disputed property and making site plan and to note the various things lying over the land in dispute. The Commissioner, in report dated 27.02.2000, reported various things on the spot, which are vital evidence to prove title and possession of the petitioner over the land in dispute. In such circumstance, the application was filed by the petitioners for summoning Advocate's Commissioner for recording his statement under Order 26 Rule 10 (2) C.P.C. The respondents will get opportunity of cross examination. Only on the ground that report was exparte, the application could not be rejected. Although the report was not confirmed but it was not rejected and is kept on record. Under Order 26 Rule 10 (2) C.P.C., statement of Commissioner can be recorded by the Court and such statement along with report will be evidence in the case. The orders of the courts below are illegal and liable to set aside. 7. I have considered the arguments of the counsel for the parties and examined the record. Section 75 C.P.C. authorizes the Court to issue commissions for the various purposes mentioned therein, which is quoted below: 75. The orders of the courts below are illegal and liable to set aside. 7. I have considered the arguments of the counsel for the parties and examined the record. Section 75 C.P.C. authorizes the Court to issue commissions for the various purposes mentioned therein, which is quoted below: 75. Power of Court to issue commissions.-- Subject to such conditions and limitations as may be prescribed, the Court may issue a commission-- (a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; or (d) to make a partition; (e) to hold a scientific, technical, or expert investigation; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; (g) to perform any ministerial act.] 8. The procedure for Commissioner has been given under Order 26 C.P.C. Order 26 Rule 9 and 10 C.P.C. which are relevant for this Court are quoted below: - 9. Commissions to make 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: 10. Procedure of Commissioner.-- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit.--The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Commissioner may be examined in person.--Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit. 9. Order 39 C.P.C. provides for power for temporary injunction. In connection with the interim injunction, Court can get inspection of the subject matter of the suit. Order 39 Rule 7 C.P.C. is quoted below: - 7. Detention, preservation, inspection, etc., of subject-matter of suit.-- (1) The Court may, on the application of any party to a suit, and on such terms as it thinks fit,-- (a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorise any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. 10. Supreme Court in Rajbir Kaur v. S. Chokesiri and Co., AIR 1988 SC 1845 held that it is possible to construe the power to appoint a Commissioner to inspect the extant state and nature of structures as not confined to Rule 9 of Order 26 but referable to Rule 7 of Order 39 CPC where the court can dispense with prior notice, should it appear to the court that the very object of making of appointment of a Commissioner would be defeated and frustrated by the issue of prior notice. On the scope of Rule 8 of Order 39 as it stood even prior to its amendment, High Courts have held that an ex parte order appointing a Commissioner, is permissible. 11. In view of the aforesaid judgment of Supreme Court, issue of exparte commissioner for inspection of the subject matter of suit under Order 39 Rule 7 C.P.C. was well within the jurisdiction of the Court and in view of Order 39 Rule 7 (2) C.P.C provisions as to execution of process as contained under Order 26 Rule 10 C.P.C. shall mutatis mutandis apply. The application for recording statement of Commissioner under Order 26 Rule 10 (2) C.P.C. was maintainable. The Courts below have illegally rejected the application. 12. In view of the aforesaid discussions, the writ petition succeeds and is allowed. The orders of Additional Civil Judge (SD) dated 11.12.2013 and order of District Judge 14.03.2014 are set aside. The application of the petitioners for summoning Advocate's Commissioner for recording his statement as witness is allowed on the Costs of Rs. 2000/-, which is condition precedent. The cost shall be paid within one month by the petitioners to contesting respondents before the Trial Court. On payment of cost Trial Court shall summon the witness and record his statement. The contesting respondents will be given opportunity for cross examination of the witness.