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2018 DIGILAW 964 (GAU)

Swastik Assam Real Estate Pvt. Ltd. v. Ratan Raha

2018-06-20

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. M. Choudhury, learned Senior Advocate, assisted by Mr. S. Deka, learned counsel for the petitioners. Also Heard Mr. K. Bhattacharjee the learned counsel for the respondent. This application under Article 227 of the Constitution of India is directed against the order dated 18.07.2017 passed by the learned Civil Judge No. 3, Kamrup (M), Guwahati, thereby rejecting petition No. 4668/17 filed by the petitioners and allowing petition No. 460/17 filed by the respondents for local investigation, in connection with T.S. No. 269/2014. 2. The petitioners herein are the defendants in T.S. 269/2014. The four respondents having interest in separate plots of land, but having a common cause are the plaintiffs in the said suit. The petitioners are builders and real estate developers. By three separate agreements dated 19.12.2008, 12.12.2008, 17.12.2008 with the respondents No. 1, 2 and jointly with respondents No. 3 and 4, the parties agreed that the petitioners will construct a multi-storey building on their respective land described in schedule A to D of the plaint. The said agreements were modified by virtue of three registered deed of rectification dated 23.7.2010 registered on separate dates. The proposed constructions had come up and thereafter a dispute arose with regard to the allocation of space due to the respondents and, as such the said suit was filed containing the following prayers:- (i) A decree for declaration that the plaintiffs are entitled to 35% construed area of flats and car parking of "Silver Square Residency" (schedule-D) as agreed in their original agreements (Annexure-1, 2 and 3) and entitled to another 10% constructed area of flats as per Deed of Rectifications (Annexure-1(A), 2(A) and 3(A) of the suit read with Annexure-1, 2 and 3 of the suit, and a declaration that all deeds and agreements for sale of flats of "Silver Square Residency" created/executed by defendants in respect of more than 55% of the building as void and illegal. (ii) A decree for mandatory injunction directing the defendants to give account of the Numbers and area of flats proposed to be sold by them to different customers and directing the defendants to put the plaintiffs in possession of the plaintiff's 45% share of flats/apartments of "Silver Square Residency" mentioned in Schedule-D of his plaint before sale and handing over possession of any flat thereof in favour of any prospective purchaser by the defendants. (iii) A permanent injunction prohibiting the defendants and their men, heir, attorney etc. from making any alienation of flats and proportionate share of land of Schedule-D in favour of any prospective purchaser without having consenting signature of the plaintiffs in such deeds of sale/alienation and restraining the defendants from taking any advance of booking of flats in respect of the 45% share of flats to be given to the plaintiffs in 1st, 2nd and 3rd of the building, and restraining the defendants and their heirs, attorneys etc. from sale and giving possession of any flat of "Silver Square Residency" to any person until and unless the plaintiffs are given their due 45% share as per agreement and deeds of rectifications. (iv) The cost of the suit may be given in favour of the plaintiffs. Alternatively (v) The plaintiffs prays for a decree declaring that the plaintiffs are entitled for recovery of khas possession of Schedule-A, B and C land respectively by dismantling all structures and constructions over the said land due to frustration of the agreements (Annexure-1, 1(A), 2, 2(A), 3 and 3(A) on refusal of defendants to abide by the terms and conditions of the said agreements. (vi) Any other relief/reliefs may be given to the plaintiffs to which they are entitled under the law and equity. 3. By filing petition No. 4460/16 dated 03.10.2016, filed under the provisions of Order XXVI Rule 9 read with section 151 CPC, which was registered as Misc. (J) Case No. 680/2016, the petitioners had prayed for a local investigation for ascertaining whether there are motorable entrances from GS Road to the Silver Square Residency. During the pendency of the said petition, the respondents had filed petition No. 460/2017 dated 9.2.2017 under Order XXVI Rule 9 read with section 151 CPC for local inspection for ascertaining the following:- a. Whether any motorable road from G.S. road to Silver Square Residency has been provided by the builder/defendants at the cost of the builder apart from the pre existing motorable roads to the said plot. b. Whether Silver Square Residency has been constructed up to 6th floor as per G.M.D.A/G.M.C. approved plan (or in deviation of such approved plan) and what is the super built up area of Silver Square Residency building. b. Whether Silver Square Residency has been constructed up to 6th floor as per G.M.D.A/G.M.C. approved plan (or in deviation of such approved plan) and what is the super built up area of Silver Square Residency building. c. To what extent the construction of Silver Square Residency has been completed by builder and whether possession has been delivered (whether any person is in actual physical possession) of any flats of Silver Square Residency and, if there is any such possessor then what is the name and address of such possessor and what authority he has to possess the same. d. How may flats are there in each floor of the Silver Square Residency. 4. The petitioner had submitted their written objection against the said petition No. 460/17 filed by the respondents. The learned trial Court by the impugned order concluded that the clauses in the Deed of Rectification made it clear that notwithstanding the fact that already motorable roads from GS road to Silver Square Residency are in existence the developer/builders/defendants had consented to provide a motorable road from GS Road to Silver Square Residency at their own arrangement for the owner and prospective buyers of owner's allocation of flats and that there also exist a dispute as to the extent of construction already made and yet to be made as well as regarding exact super built area and, as such the petition filed by the respondents was allowed and the petition filed by the petitioners was rejected. Directions were issued to the Chief Executive Officer, Guwahati Metropolitan Development Authority (GMDA for short) to depute competent persons/experts/Engineers to carry out inspection of the Silver Square Residency to ascertain the facts as prayed for by the respondents in para 5 (a) to (d) of their petition No. 460/17 and to submit report after completion of investigation. 5. The learned Senior Counsel for the petitioners has submitted that the purpose of commission to make local inspection is to be exercised for "elucidating" any matter in dispute and for the purpose of such local inspection is not to fish out evidence for the parties. 5. The learned Senior Counsel for the petitioners has submitted that the purpose of commission to make local inspection is to be exercised for "elucidating" any matter in dispute and for the purpose of such local inspection is not to fish out evidence for the parties. It is submitted that the purposes of local investigation under Order XXVI Rule 9 CPC is that such a report/evidence will elucidate a point which may otherwise be left in doubt or to enable the learned court to find out the truth if there was any ambiguity in the record. It is submitted that in the present case, without making any attempt to prove the case, the respondents had made a prayer for local investigation which was allowed and before the parties could lead their evidence, the evidence collected by the Commissioner is sought to be brought on record. 6. It is further submitted that the case of the parties in the suit is based on the interpretation of various agreement between the parties and it was for the learned trial Court to ascertain on the basis of evidence to be brought on record whether the respondent were entitled to any relief in terms of the various prayers made in the plaint. However, by appointing a Commission under Order XXVI Rule 9 CPC the scope of the local investigation by the Commissioner was enlarged beyond the prayers made in the plaint. In the said context, it is submitted that in the present case, the scope of the Commissioner was for making a roving enquiry to collect evidence for the respondents, which is not the purpose of the provisions of Order XXVI Rule 9 CPC. It is submitted that it was the burden of the respondents, as plaintiffs, to prove their cases by producing material evidence. Hence, it is submitted that the report of the Commissioner cannot be permitted to be relied upon to form of basis of the decision of the learned trial Court. It is submitted that the impugned order be interfered with by setting aside the same. It is also submitted that consequential orders be also passed so that the report of the Commissioner ought not to be relied in trial. In support of his submissions, the learned Senior Counsel for the petitioners has placed reliance on the following cases:- a. Prem Ratan v. Rent Tribunal, Jaipur & Anr. It is also submitted that consequential orders be also passed so that the report of the Commissioner ought not to be relied in trial. In support of his submissions, the learned Senior Counsel for the petitioners has placed reliance on the following cases:- a. Prem Ratan v. Rent Tribunal, Jaipur & Anr. (2011) 0 Supreme (Raj) 1431. b. The Treasurer, Chennai Devangar Mahajana Sabhai v. M. Rajappan & Ors., (2002) 0 Supreme (Mad) 1347. c. Jute Corporation of India Ltd. v. Sudera Enterprises Pvt. Ltd., AIR 2000 Cal 152 : d. Union of India & Anr. v. M/S Kripal Industries, AIR 1998 Raj. 224 . e. K. Ragunath Rao v. Smt. Tumala Jailaxmi, AIR 1988 Ori 30 . f. Basanta Kumar. v. Baidya Kumar, AIR 1999 Ori 118. 7. Per contra, the learned counsel for the respondent has submitted that before the present revision was filed, by a forwarding letter 28.08.2017, the Chief Executive Officer, GMDA had submitted a report of the local inspection of Silver Square Residency before the learned trial Court and, as such, this revision has now become infructuous. It is also submitted that the petitioners cannot be permitted to approbate and reprobate on the issue of appointing a Commissioner for carrying out local investigation because earlier point of time, the petitioners had filed Misc. (J) Case No. 680/2016 for local inspection under Order XXVI Rule 9 read with Section 151 CPC, and that at that time also none of the parties had adduced evidence in the suit. It is also submitted that the prayers in both the petitions filed by the petitioners as well as the respondents were similar because while the petitioners had prayed to ascertain whether there is/are motorable entrance road from GS Road to the Silver Square Residency, the prayer No. (a) by the respondents was whether any motorable road from GS Road to Silver Square Residency has been provided by the builder/defendants at the cost of the builder apart from the pre-existing motorable road to the said plot. Therefore, it is submitted that as the prayers are similar, no prejudice would be suffered by the petitioners if the Commissioner's report is allowed to remain on record, without interfering with the impugned order. 8. It appears to this Court that as per the provisions of Order XXVI Rule 9 CPC, the purpose of local investigation is for elucidating a matter in dispute. 8. It appears to this Court that as per the provisions of Order XXVI Rule 9 CPC, the purpose of local investigation is for elucidating a matter in dispute. Therefore, under the said provisions, the learned trial Court has the discretion to pass an order for a local investigation. The said provisions of Order XXVI Rule 9 CPC provides for a local inspection under 3 (three) situations, viz., (1) for the purpose of educating any matter in dispute, (2) for ascertaining the market value of any property, and (3) for ascertaining the amount of any mesne profits or damages or annual net profits. The dictionary meaning of the word "elucidate" is "to clarify by explaining". It also means "to throw light on" or "explain". Therefore, in the opinion of this Court, the provision of Order XXVI Rule 9 CPC provides for discretionary power of the Court to direct a local investigation for the purpose of "elucidating the matter in dispute ". Thus, the civil Court can pass orders for local investigation where the learned trial Court deems that some more clarity or some more light is required to be thrown of the subject matter in dispute. 9. In the further opinion of this Court the purpose of appointing a local investigation is not to fish out any evidence for the contesting parties. It would be relevant to quote the provision of Rule 230 and Rule 237 of Chapter 11 of the Civil Court Rules and Orders of the Gauhati High Court:- "Chapter 11 Commissions 4. Commission for local investigation.- 230.(1) When a subordinate Civil Court, either on its own motion or on the application of a party, directs a local inquiry, the order for such inquiry shall be drawn up by the presiding Judge himself and shall contain the following matters- (a) Whether the inquiry is directed by the Court Proprio motu or upon application, and if upon application, from which party; (b) What the points are which require elucidation or ascertainment in that particular way, (c) Why such matter could not be proved or ascertained in the ordinary way by producing documents at the proper time and witnesses at the trial, (d) The instructions given to the commissioner. (2) In all orders of investigation by a commissioner under Order 26, Rule 9, these rules shall be cited as well as the section or Order or Rule of the Code. (2) In all orders of investigation by a commissioner under Order 26, Rule 9, these rules shall be cited as well as the section or Order or Rule of the Code. 237. The Court shall consider the objections, if any, of the several parties to the report of the commissioner and may accept the report or any portion of it or pass such orders as it thinks fit under Order 26 Rule 10(3)." 10. On a perusal of the various case laws cited by the learned Senior Counsel for the petitioners, it is seen that as per the ratio of the said cases, it is clear that the purpose of local investigation under Order XXVI Rule 9 CPC is not to fish out evidence for the parties where the parties can get such evidence and it is well settled that the writ can be issued to a Commissioner for local investigation to enable the learned trial Court to appreciate the evidence already on record and only if the Court finds that the parties themselves cannot produce evidence to that effect, the Court would issue Commission for local investigation. 11. In this connection the relevant extract of the various citations relied upon by the learned Senior counsel for the petitioners is reproduced below: a. Prem Ratan v. Rent Tribunal, Jaipur & Anr., (2011)0 Supreme (Raj) 1431. "12. The instant case is only concerned with the situation under Order 26 Rule 9 CPC relating to the purpose of elucidating the matter in dispute. The Concise Oxford Dictionary New Seventh edition defines the word "elucidate" to mean "throw light on" or "explain". It is thus clear that the provisions under Order 26 Rule 9 CPC while empowering the court with the discretion to direct a local investigation for the purpose of "elucidating the matter in dispute" only provides for the court to make local investigation where the court is not clear with regard to the matter in dispute such as where court feels the absence of requisite clarity qua the subject matter of the dispute. In the instant case, the dispute before the Tribunal was/is absolutely clear i.e. whether the tenanted premises were liable to be vacated by the tenant owing to the bona fide and reasonable necessity of the landlord. There was thus no occasion for any elucidation of the subject matter in dispute. In the instant case, the dispute before the Tribunal was/is absolutely clear i.e. whether the tenanted premises were liable to be vacated by the tenant owing to the bona fide and reasonable necessity of the landlord. There was thus no occasion for any elucidation of the subject matter in dispute. The application under Order 26 Rule 9 CPC was thus misdirected and was only intended to facilitate the gathering of the evidence on behalf of the tenant. This is wholly impermissible."........ b. The Treasurer, Chennai Devangar Mahajana Sabhai v. M. Rajappan & Ors., (2002) 0 Supreme (Mad) 1347 "2. I am afraid that Order 26, Rule 9, CPC, cannot be invoked for ascertaining such facts, which can always be ascertained by way of letting in evidence, by which process alone the petitioner will have to establish such factors. 4. The highlighted part in the above said paragraph would make it clear that only where the evidence so collected through the Advocate Commissioner will elucidate the point which would otherwise be left in doubt or ambiguity on record, resort can be had by invoking Order 26, Rule 9, CPC. When such being the legal position and when the purpose for which the petitioner seeks the appointment of advocate Commissioner can very well be established by various other forms of evidence. I am of the view that the Court below was fully justified in rejecting the petitioner's application filed under Order 26, Rule 9, CPC." c. Jute Corporation of India Ltd. v. Sudera Enterprises Pvt. Ltd., AIR 2000 Cal 152 "15. xxxx For the purpose of collection of evidence on behalf of the parties also no commissioner can be appointed." d. K. Ragunath Rao v. Smt. Tumala Jailaxmi, AIR 1988 Ori 30 . 9. In (1973) 39 Cut LT 180 : AIR 1973 Ori 240 , it is observed thus : Debendranath Nandi v. Natha Bhuiyan ".....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. 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, CPC 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 prerequisite 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." e. Basanta Kumar. v. Baidya Kumar AIR 1999 Ori 118. "4. The object of Order 26, Rule 9, C.P.C. is not to assist a party to collect evidence where it can get the evidence itself. This satisfaction is to be judicial satisfaction based on reason." e. Basanta Kumar. v. Baidya Kumar AIR 1999 Ori 118. "4. The object of Order 26, Rule 9, C.P.C. is not to assist a party to collect evidence where it can get the evidence itself. The object is for elucidating any matter in dispute by local investigation at the spot. Where on the evidence of experts on record, the Court is satisfied that for appreciating the opinion of the expert evidence, it should appoint an expert as commissioner, it can on the facts and circumstances of the case, appoint a commissioner. Where the Court is satisfied on the materials available on record that a party is not able to produce the desired evidence for reasonable circumstances, the Court may assist the party to appoint a commissioner to get the evidence. However, such evidence is not binding on the Court which is to appreciate the same along with other evidence." 12. In the present case in hand, pursuant to the writ issued to the Commissioner, the report of the Commissioner as forwarded by letter dated 28.08.2017 by the Chief Executive Officer, GMDA has been brought on record. In terms of the provisions of Order 26 Rule 10(2) CPC, the report of the Commission is "evidence" in the suit. In this connection, it must be kept in mind that the provisions of Order XVIII Rule 3A CPC requires that where a party himself wishes to appear as a witness he shall so appear before any witness on his behalf has been examined unless the Court, for reasons to be recorded permits him to appear as his own witness at a later stage. In this context, it must be kept in mind that the provisions of Order XXVI Rule 10(2) CPC provide the adversarial party the right of examining the Commissioner. The provisions of Rule 230 (1) (c) of the Civil Court Rules and Order of the Gauhati High Court requires the learned trial Court to record its satisfaction as to why such matter could not be proved or ascertained in the ordinary way by producing documents and/or evidence at the proper time and witnesses at the trial. The provisions of Rule 230 (1) (c) of the Civil Court Rules and Order of the Gauhati High Court requires the learned trial Court to record its satisfaction as to why such matter could not be proved or ascertained in the ordinary way by producing documents and/or evidence at the proper time and witnesses at the trial. Therefore, if a Commissioner is examined prior to the examination of a party to the suit, the evidence of such Commissioner cannot be said to be inconsonance with the provision of Order XVIII Rule 3A CPC. 13. Therefore, in view of the discussions above notwithstanding that the petitioners herein had prayed for appointment of commissioner vide petition No. 4460/16, being Misc. (J) Case No. 680/16, the learned trial Court is found to have permitted the respondents to collect evidence through the Commissioner appointed under Order XXVI Rule 9 CPC. It is also seen that while ordering the appointment of Commissioner, the learned trial Court had not recorded its satisfaction as provided under Rule 230(1)(c) of the Civil Court Rules and Orders of Gauhati High Court. Moreover, by the impugned order, a scope has been provided to the respondents for making a roving enquiry which is not the purpose of the provisions of Order XXVI Rule 9 CPC, as such, the impugned order suffers from jurisdictional error and if the said order is allowed to stand, it would occasion failure of justice. 14. Resultantly, this revision succeeds and is hereby allowed. The impugned order 18.07.2017 passed by the learned Civil Judge No. 3, Kamrup (M), Guwahati stands set aside. 15. It is needless to say that the report of the Commissioner, which has come on record pursuant to the passing of the order impugned herein shall not be acted upon. It is further provided that if after the witnesses of the parties are examined, it appears to the Court that some matter requires to be elucidated, it would be open to the learned trial Court to issue fresh Commission. The parties are left to bear their own cost.