Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 839 (MP)

Bhanupratap Singh v. Sunil Kumar Singh

2014-07-16

SUJOY PAUL

body2014
JUDGMENT Sujoy Paul, J. 1. This petition filed under Article 227 of the Constitution challenges the order dated 11.10.2012 whereby the application of the petitioner/plaintiff preferred under Order 39 Rule 7 CPC is rejected by the Court below. The plaintiff filed the said application Annexure P-3 with the prayer that the suit property be directed to be inspected by a Court Commissioner and inspection report be summoned. The prayer is opposed by the other side. The Court below opined that the prayer of the plaintiff is beyond the scope of Order 39 Rule 7 CPC. Petitioner is trying to gather evidence which cannot be permitted to be done. 2. Criticizing this order, Shri Sanjay Sharma submits that the order is bad in law. If Court Commissioner is not appointed, it will be difficult for the plaintiff to prove his case. He relied on Murarilal Vs. Babu Singh, 1998 (1) M.P.L.J. 363 . 3. Prayer is opposed by Shri Abhishek Bhadoria by supporting the order. He relied on Ashutosh Dubey Vs. Tilak Grih Nirman Sahkari Samiti & Another, 2004 (3) M.P.L.J. 213 . 4. I have heard the learned counsel for the parties and perused the record. 5. The scope of Order 39 Rule 7 CPC is recently considered by this Court in Balaram Mahajan Vs. Praveen Kumar & Others, W.P. No. 30 of 2013. This Court held as under:- 6. The Court below rejected the application on the ground that as per the averments of the application and the reply, it is clear that there exists a boundary wall. The existence of latrine and bathroom is also clear. The Court opined that at this stage no case is made out to invoke Order 39 Rule 7 C.P.C. 7. It is apt to quote Order 39 Rule 7 C.P.C. which reads as under:- 7. The existence of latrine and bathroom is also clear. The Court opined that at this stage no case is made out to invoke Order 39 Rule 7 C.P.C. 7. It is apt to quote Order 39 Rule 7 C.P.C. which reads as under:- 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 authorize 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 purpose aforesaid authorize 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. (2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this rule. 8. The Order 39 can be traced in chapter on "Temporary Injunctions and Interlocutory Orders" and Rule 7 thereof is placed under the sub-heading "Interlocutory Orders". Order 26 under the Chapter on "Commissions" and Rule 9 of Order 26 onwards come directly under the heading "Commissions to make Local Investigations". 9. In the opinion of this Court, when a person is deputed under Order 26 Rule 9 for ascertaining, collecting or elucidating facts in support of any matter in dispute and other things mentioned in the said rule, after proper scrutiny, enquiry, examination and sifting of the material, his report filed under Order 26 Rule 9 is admitted in evidence and forms part of the record. The dictionary meaning of the word "investigation" is: -- Act of examining; ascertainment of facts; sifting of materials; search for relevant data. The dictionary meaning of the word "inspect" is:-- To examine; to look into; to look at narrowly, officially, or ceremonially. 'Inspection' is "the act of inspecting or looking into matters; careful or official examination". The dictionary meaning of the word "investigation" is: -- Act of examining; ascertainment of facts; sifting of materials; search for relevant data. The dictionary meaning of the word "inspect" is:-- To examine; to look into; to look at narrowly, officially, or ceremonially. 'Inspection' is "the act of inspecting or looking into matters; careful or official examination". The context in which word inspection is mentioned in Rule 7, it is clear that the said provision has been made mostly for the purpose of keeping on record the existing condition of the property so that if same is subjected to any change later on, deteriorated or subjected to any mischief by any other party/s or by any other agency or reason that can be known to the Court and if occasion arises Court may take note of it. However, the purpose of issuance of Pleader/Commissioner under Rule 9 of Order 26 is for collecting the facts which in due course may be used as an evidence. I find support in my view from Kalandi Swain and Others Vs. Braja Kishore Dass and Others, AIR 1980 ORISSA 98. 10. The Kolkatta High Court in Lodna Colliery Co. (1920) Ltd. Vs. Bholanath Rai and Others, AIR 1954 (Calcutta) 233 opined as under:- About six years after the filing of the suit and two days before the actual hearing commenced the defendant company filed a petition on 15.3.1949 for holding a local inspection by the Court to see whether certain boundary pillars had been removed from the lands in question. The defendant alleged that there had been certain boundary pillars on the site and they had just before the application had been made come to know that such pillars had been removed. The learned Subordinate Judge refused the prayer as the existence of the pillars and their alleged removal could be proved by evidence in Court. Three days later when the hearing was proceeding another application was filed by the defendant for local inspection by the Court. This prayer also was refused. The defendant claimed that there were pillars on the boundary between Mouza Sripur and another contiguous Mouza Hariharpur and on another side of the said Mouza and Chak Brindabanpur. He rightly held that it was not a matter for local inspection under O.39 R. 7, Civil P.C. but was a matter for local investigation under R. 9 of O.26 of the Code. 11. He rightly held that it was not a matter for local inspection under O.39 R. 7, Civil P.C. but was a matter for local investigation under R. 9 of O.26 of the Code. 11. In the light of aforesaid, it is clear that the plaintiff, in fact, was seeking an investigation and not only the inspection. If his application Annexure P-4 is examined minutely, it will be clear that his purpose was to seek inspection to ascertain the real position of the boundary wall and latrine and bathroom. This exercise cannot be undertaken for the said purpose under Order 39 Rule 7. Thus, I find no flaw in the order passed by the Court below. 6. If prayer of the plaintiff is examined on the anvil of the principle laid down aforesaid, it will be clear that the plaintiff is seeking investigation and not only the inspection. This is clearly outside the scope and purview of Order 39 Rule 7 CPC. I respectfully agree with the view taken by Kolkatta High Court in Bholanath Rai (supra). Apart from this, evidence cannot be collected through application under Order 39 Rule 7 CPC. 7. The scope of interference under Article 227 of the Constitution is limited. If order is shown to be passed by a Court having no jurisdiction, it suffers from manifest procedural impropriety or perversity, interference can be made. Interference is made to ensure that Courts below act within the bounds of their authority. Another view is possible, is not a ground for interference. Interference can be made sparingly for the said purpose and not for correcting error of facts and law in a routine manner. This view is taken in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 . 8. In the opinion of this Court, the Court below has taken a plausible view in rejecting the said application. There is no ingredient on which interference can be made. Petition fails and is hereby dismissed. No cost.