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2017 DIGILAW 899 (GAU)

RAJIB BAROOAH v. PURNIMATI PLANTATION PVT. LTD.

2017-07-12

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. B.J. Ghosh, learned counsel appearing for the petitioner and Mr. K. Bhattacharjee, the learned counsel appearing for the respondent. Taking note of the nature of case, with the consent of the parties, the matte was heard at ‘admission stage’. 2. The petitioner herein had filed a suit against the respondent for eviction, recovery of possession, recovery of arrear rent and compensation and for permanent injunction, which was registered as Title Suit No. 76/2009 and being tried before the learned Munsiff No.1, Jorhat. Briefly stated the suit was, inter-alia, structured on the ground that vide Deed of Lease dated 12.04.2004, which was effective from 02.12.2003, the land described in Schedule-A was leased out for a period of 99 years at a yearly rent of Rs.10,000/- per year, payable within 30 days in each year from the date of commencement of the lease. The eviction of the respondent was sought on the ground that they had violated various clauses of the lease deed, there was no development of the tea estate, suit land was being used for other purposes not covered by the deed, sub-letting, non-payment of lease rent, creation of mortgage, etc. The respondent/ defendant denied the same. Owing to the nature of the issue raised in the present application, it is not deemed necessary to burden this order with pleadings of the parties. 3. In course of proceeding of the suit, the petitioner/ plaintiff had filed a petition under the provisions of Order XXVI Rule 9 and 10-A of the Civil Procedure Code, which was numbered as Petition No. 1653/15 dated 01.07.2015. It was stated therein that the respondent/ defendant had caused large scale damage to the Tea plantation and no steps were taken for development of Tea and that quite a number of measures not connected to Tea had been undertaken. Hence, it was urged and prayed that a Survey Commission be appointed to survey the area of Purnimati Tea Estate of Purnimati Plantations Pvt. Ltd. in presence of both parties and submit a report. The name of a surveyor was also suggested in the said petition. 4. Hence, it was urged and prayed that a Survey Commission be appointed to survey the area of Purnimati Tea Estate of Purnimati Plantations Pvt. Ltd. in presence of both parties and submit a report. The name of a surveyor was also suggested in the said petition. 4. The learned court of Munsiff No.1, Jorhat, by an order dated 29.07.2015, inter-alia, opined that the lessee/ defendant had every right to enjoy the leased property in accordance with the terms and conditions agreed between the parties to the lease deed until land unless the deed is cancelled and further opined that the main relief in the suit is for eviction and the suit has attained its final stage and the plaintiff and his witnesses, except the official witness had already been examined and cross-examined. However, on forming a further pinion that the survey commission was not relevant for proper adjudication of the matter and it would also cause delay in disposal of the matter, which was more than 5 years old. It was also opined that the facts and circumstances of the case also does not suggest that the information sought by the plaintiff can only be elucidated by way of survey commission, or scientific investigation is must for adjudication of the matter. Hence, the said petition was rejected. The said order is impugned in the present application under Article 227 of the Constitution of India. 5. The learned Senior Counsel for the petitioner has submitted that the impugned order is not tenable because the purpose of the survey was to ascertain the changes in topography, which could only be done by scientific study being carried out by a qualified Surveyor. For the said purpose, the pleadings made in paragraph 10 of the plaint was relied upon, wherein it was specifically stated that if survey was conducted now, the changes made in the topography in violation of the conditions of the lease would be revealed. It was further submitted that immense damages to the Tea plantation and Tea Estate was done in violation of the clauses of the lease deed. It was further submitted that immense damages to the Tea plantation and Tea Estate was done in violation of the clauses of the lease deed. Moreover, it was submitted that a sketch map prepared at the time of execution of the lease was filed with the plaint and, as such, the opinion of the learned trial court that the respondent/ defendant had every right to enjoy the suit property in terms of the lease, if allowed to stand, would cause severe prejudice to the petitioner/ plaintiff. It was further submitted that amongst the 10 issues framed by the learned trial court, the Issue No. 7 was – whether the defendant had changed the user of land and also topography of the land and, as such, the Survey Commission would be come to the aid of the court to decide the said issue. 6. It was also submitted that the purpose of appointing a Commission was to enable the Court to correctly and properly appreciate the real issues in controversy and to understand and assess the evidence on record. Therefore, if the Survey Commission is allowed, it would assist the Court to clear any doubts that may exist in the mind of the Court and that a writ for Commission should normally be allowed if there is already some evidence on record. In support of his argument, the learned Senior Counsel for the petitioner has placed reliance on the case of K. Raghunath Rao V. Smt. Tumula Jailaxmi, AIR 1988 Orissa 30. 7. Per contra, the learned counsel for the respondent/ defendant by referring to the statements made in paragraph 4 of the affidavit-in-opposition filed on 25.11.2016 has submitted that the petitioner/ plaintiff had prior to filing of the suit, got the Tea Estate surveyed by the same Surveyor, named in the petition, and his report dated 23.01.2008 was the basis of filing the suit. By referring to the statements made in paragraph 10 of the Evidence-on-affidavit filed by the plaintiff on 28.01.2011, it was pointed out that one Survey Report dated 31.12.2001 was exhibited and marked as Ext.20. 8. It is also submitted that in the said paragraph 10 of the Evidence-on-affidavit, it was stated that the plaintiff was filing a separate petition for fresh survey, seeking leave of the court to adduce further evidence with regard to the same. 8. It is also submitted that in the said paragraph 10 of the Evidence-on-affidavit, it was stated that the plaintiff was filing a separate petition for fresh survey, seeking leave of the court to adduce further evidence with regard to the same. In this regard, it is submitted that instead of leading further evidence, the petitioner/ plaintiff was seeking appointment of Commission, which if allowed would become a part of evidence by virtue of the provisions of Order XXVI Rule 10(2) of the Civil Procedure Code. Therefore, the real intention of the petitioner is to fish-out evidence, which is not permissible in law. In support of his submissions, the learned Counsel for the respondent/ defendant had relief on the following cases – (i) Thakur Singh Chettri & Ors. V. Dharma Samsher Basnert & Anr., AIR 2015 Sikkim 37 (print-out from 2015 STPL 9844 Sikkim), Rathnamma & Ors. V. Ademma, AIR 2010 Kar 740 [print-out from 2010 0 Supreme(Kar) 251], Manickam & Ors. V. Ayyavoo @ Sittan, 2008 0 Supreme(Mad) 4221. 9. Having heard the learned counsels for both sides and on perusal of the materials available on record. It is observed that the admitted case of the petitioner/ plaintiff in paragraph 11 of the plaint is that around the time of execution of the deed of lease, a survey was conducted by duly authorized and competent surveyor. The statements made in the Evidence-on-affidavit by the plaintiff shows that the said report (Ext.20), was by the same surveyor whose name was proposed in the application filed under the provisions of Order XXVI Rules 9 and 10-A of the Code. 10. In paragraph 10 of the said Evidence-on-affidavit filed by the petitioner/ plaintiff, it is specifically stated that if the fresh survey is done, then it would reveal the difference in the topography and large scale of damage to the Tea Estate and Tea plantation, which was in violation of the lease deed. Therefore, in the opinion of this court, it is noticeable that the real intention of the petitioner/ plaintiff is to fish-out evidence. In this regard, the case of K. Raghunath Rao (supra), cited by the petitioner, is of no help to the petitioner. The survey is not necessitated for explaining any fact, but to find out the evidence. Therefore, in the opinion of this court, it is noticeable that the real intention of the petitioner/ plaintiff is to fish-out evidence. In this regard, the case of K. Raghunath Rao (supra), cited by the petitioner, is of no help to the petitioner. The survey is not necessitated for explaining any fact, but to find out the evidence. But, as per the ratio of the cited case, a Commission may be allowed if it explains the evidence, which is already on record, which is not the case in hand. In the present case, the petitioner/ plaintiff did exhibit the Survey Commission Report as Ext.20, but it was of a period prior to the institution of the suit. It is not the projected case of the petitioner that he did not have the access to the Tea Estate or was prevented from carrying out such a survey and, as such, no evidence could be produced to portray true picture of the suit property before the Court, rather, it is the pleaded case of the petitioner/ plaintiff that the respondent/ defendant had changed the topography and, as such, it would be the initial burden of the plaintiff to prove the said statement. There is total absence of reason why the petitioner/ plaintiff could not carry out the exercise of survey of his own, when he had relied on the report of a previous survey (Ext.20), which was done by the same surveyor, named in his petition. At this stage, it is deemed fit to quote the relevant paragraph 9 of the said case of K. Raghunath Rao (supra): “9. "..... The object of local investigation under the above provision is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record already recorded. It clarifies or explains any point which is left doubtful on the evidence on record The trial Court's decision in the present case to depute a Commissioner for the above purpose is indicative of the fact that in view of the evidence before the Court it considered it necessary to obtain a report from the Commissioner about the correct and actual position of the disputed property. In view of the rival averments made by the parties and in view, of the evidence on record, a Commissioner's report of local investigation was absolutely necessary in this case....." The aforesaid passage makes it clear that local investigation by a Commissioner can be made in exercise of the power under Order 26, Rule 9, C.P.C. where visit to the spot is necessary. That would be a local investigation requisite or proper. When the report would be necessary to appreciate the evidence on record, a commission can be issued in proper case. Therefore, normally writ is to be issued to a Commissioner for local investigation to appreciate the evidence already recorded. There may be departures from the normal rule for issue a commission also. For illustration : Where evidence is necessary to know the depth of water in a particular season a Commissioner can be deputed even though evidence has not been recorded. Where it is to be found as to on which plot the disputed land lies, a writ can be issued to any person to relay the same even though no evidence is required if the Court finds that the parties themselves cannot produce evidence to that effect. Since issue a writ to a person for local investigation would depend upon the facts and circumstances of each case, no hard and fast rule can be laid down. This much can be said that the basic pre-requisite for issue of such a writ is the satisfaction of the Court that a local investigation is requisite or proper. This satisfaction is to be judicial satisfaction based on reason.” 11. This court is of the view that there can be no dispute with regard to the general principle that a local inspection under Order XXVI Rule 9 of the Code cannot be directed to gather evidence. Moreover, it is not a case where there is any ambiguity in the description of the suit property and, as such, in the opinion of this Court, when the plaintiff has already examined himself and his witnesses, except the official witness, and such witnesses were cross examined, if a Commission is allowed at this stage, it would be to allow the plaintiff to fill up the lacunae, if there by any, as the purpose of the provision of Order XXVI Rule 9 and 10-A of the Code is not to find out or create evidence. In this regard, one has to bear in mind that as per the provisions of Order XXVI Rule 10(2) of the Code, a report of the Commission becomes evidence in the suit. 12. This Court finds that the learned trial Court below has appropriately and appositely considered the factual circumstances and rejected the petition No. 1653/15 filed by the petitioner/ plaintiff under Order XXVI Rule 9 and 10-A of the Civil Procedure Code. It was the onus upon the petitioner/ plaintiff to place whatever facts he wanted to prove his case by adducing oral and/or documentary evidence during trial and the same cannot be permitted by way of getting the Commission appointed. As mentioned above, the issue No. 7 is – whether the defendant had changed the user of land and also topography of the land. The petitioner/ plaintiff cannot be allowed to not lead any evidence in this regard and depend on evidence collected by the Commission for the decision on the said issue. 13. This Court finds that the examples set out in the case of K. Raghunath Rao, aptly describes the circumstances under which a Commission for survey of disputed land can be ordered and in the opinion of this Court, the said circumstances does not exist in the present case in hand. It would be also relevant to refer to the case of Manickam & Ors. (supra), where the Hon'ble Madras High Court has also held that “It is an axiomatic fact that the appointment of a Commission under Order 26 Rule 9 is a discretionary power of the Court. The aim of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to gather evidence, where he can procure or produce the evidence himself. …” 14. In view of the foregoing discussions, this Court is not inclined to interfere with the impugned order as no jurisdictional error has been found. 15. The aim of Order 26 Rule 9 of Civil Procedure Code is not to assist a party to gather evidence, where he can procure or produce the evidence himself. …” 14. In view of the foregoing discussions, this Court is not inclined to interfere with the impugned order as no jurisdictional error has been found. 15. As regards the anxiety expressed by the learned Senior Counsel for the petitioner that the observation made by the learned court below would cause prejudice to the petitioner, this court is of the view that the observations of the learned court below was merely for the purpose of giving a decision on the petition and, it is a well settled principle that interlocutory orders cannot influence a decision on merit in a suit, which is liable to be decided on the basis of evidence on record and the applicable law, as such, it is needless to mention that the said principle would be noted. 16. This revision, thus, stands dismissed. The parties are left to bear their own cost.