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2019 DIGILAW 1472 (RAJ)

Topwell Projects Consultants Ltd. v. Prem

2019-05-13

SANJEEV PRAKASH SHARMA

body2019
JUDGMENT Sanjeev Prakash Sharma, J. - By way of this writ petition, the defendants-petitioners have prayed for quashing and setting aside the order impugned dated 07/08/2015 whereby the objections filed by them against the inspection conducted by the Commissioner appointed by the learned trial court have been rejected and the inspection report has been accepted. 2. Brief facts which need to be considered are that the plaintiff-respondent (Sher Singh), whose legal heirs are respondents in the present writ petition, filed a suit for declaration against the defendants-petitioners stating that he is co-tenant of the land bearing Khasra No.184 together with Khasra No.183, 183/335, 184/336, 182/334, 197, 198, 167, 170 situated at Village Thada, Tehsil Tijara, District Alwar. 3. Along-with the suit, the plaintiff-respondent also moved an application under Order 39, Rule 1 & 2 CPC praying for injunction as against the defendants-petitioners for restraining them from causing hindrance in use of the way, having 20ft. width and 350ft. Length, leading to the lands of the plaintiff-respondent. 4. The defendants-petitioners filed written statement and reply to the application for temporary injunction and stated that there was an alternative way to lead to the lands of the plaintiff-respondent which is much broader and more convenient. It was denied that there was any way existing from the lands of the defendants-petitioners. 5. Upon the said submission, at the request of the plaintiff-respondent, Commissioner was appointed for conducting inspection of the site by the learned trial court to see the actual position regarding the way. 6. The Commissioner accordingly conducted inspection of the site and submitted report wherein it was stated that on the disputed site there appears a way as there are marks of grass cut due to harrow attached to the tractor passing through the lands of the defendants-petitioners leading towards the lands of the plaintiff-respondent. It was also noted that the defendants-petitioners had asked the Commissioner to look into the other side of the site to show that there was an alternative way available. However, the Commissioner has refused to conduct inspection of the area other than the disputed site whereupon an application was moved before the learned trial court raising objections relating to the report of the Commissioner. 7. However, the Commissioner has refused to conduct inspection of the area other than the disputed site whereupon an application was moved before the learned trial court raising objections relating to the report of the Commissioner. 7. The learned trial court vide its order dated 07/08/2015 rejected the objections of the petitioner regarding the report of the Commissioner dated 30/07/2015 stating that if there is any alternative way available, it was for the petitioner to prove the same in the trial. The defendants-petitioners had also moved another application under Order 39, Rule 7 CPC for appointment of the Commissioner in light of the aforesaid findings but the said application of the defendants-petitioners was dismissed by the learned trial court vide order dated 09/10/2015 and therefore, the defendants-petitioners preferred SB Civil Writ Petition No.16365/2015 assailing the order dated 09/10/2015 with the prayer for appointing of the Commissioner. 8. Learned counsel for the defendants-petitioners stated that as this Court was of the view that the defendants-petitioners ought to challenge the order dated 07/08/2015, the writ petition was allowed to be withdrawn to file afresh vide order dated 24/05/2017 assailing the order dated 07/08/2015. 9. Learned counsel for the defendants-petitioners submitted that once a Court Commissioner is appointed under Order 39, Rule 7 CPC and the order by which he has been appointed a Commissioner mentions about the dispute raised by the parties, for the purpose whereof the Commissioner has been appointed, it was necessary for the Commissioner to have conducted the inspection in terms of Order 39, Rule 7 CPC and submit the entire report. When the objection was raised relating to the site report, the learned trial court ought to have taken note of the fact that the Commissioner's report had not been accepted by the defendants-petitioners and the report was incomplete. Counsel thus submitted that the order impugned deserves to be set aside and a fresh Commissioner's report be directed to be prepared to see whether there was an alternative convenient way available for the plaintiff-respondent at the site. It is his submission that there is 30mt. wide road which has also been indicated in the sector plan as well as in the site plan issued by the defendants-petitioners along-with lease deed after conversion of the land under Section 90 of the Rajasthan Land Revenue Act. The said 30mt. It is his submission that there is 30mt. wide road which has also been indicated in the sector plan as well as in the site plan issued by the defendants-petitioners along-with lease deed after conversion of the land under Section 90 of the Rajasthan Land Revenue Act. The said 30mt. wide road is actually available on the site and connects the lands of the plaintiff-respondent with the main road. The defendants-petitioners have also placed on record certain maps to buttress their assertion. The defendants-petitioners submit that where ever there is gross violation of justice, this Court under Articles 226 and 227 of the Constitution of India can invoke its power of superintendence as against the orders, acts or proceedings of the courts subordinate to it. Counsel has relied on the law laid down by the Apex Court in Surya Dev Rai vs. Ram Chander Rai and others: (2003) 6 SCC 675 . 10. Per-contra, learned counsel appearing of the plaintiff-respondent submits that the defendants-petitioners have challenged the order dated 07/08/2015 belatedly. Earlier when they filed SB Civil Writ Petition No.16365/2015, only the order dated 09/10/2015, whereby the application for appointment of Commissioner moved by the petitioner was rejected, was challenged. The said writ petition was dismissed as withdrawn. The present writ petition challenges a different order entirely and as the same is highly belated, the writ petition ought not be entertained. It is submitted that after two years, the writ petition is liable to be dismissed. It is submitted that another alternative way was not available on the actual site and the local Commissioner appointed by the trial court has rightly examined only the dispute site and was not required to see the other adjacent sites to find out whether there was some other way available to approach the lands. Moreover, the order impugned clearly allows the petitioners-petitioners to lead evidence during their testimony during the course of trial and thus no prejudice has been caused to the defendants-petitioners by the Commissioner's report. It is submitted that the Commissioner's report clearly shows that there is a way existing from the lands of the defendants-petitioners leading to the lands to the plaintiff-respondent and the application under Order 39, Rule 1 & 2 CPC is only with respect to protecting the way which is existing from the lands of the defendants-petitioners towards the lands of the plaintiff-respondent. It is submitted that the defendants-petitioners want to linger on the matter preventing the trial court from adjudicating the civil suit. Learned counsel relies on the judgment of the Apex Court in Subhaga and others vs. Shobha and others : 2006 (5) SCC 466 to submit that the inspection was not required to be done of the adjacent lands. 11. Heard learned counsel for both the parties. 12. This Court in earlier writ petition, bearing SB Civil Writ Petition No.16365/2015 filed by the defendants-petitioners granted liberty to the defendants-petitioners for withdrawing the said writ petition with permission to challenge the order dated 07/08/2015 passed by the trial court afresh where-after the present writ petition has been filed. 13. It would be appropriate to quote provisions of Order 39, Rule 7 CPC for disposal of the present writ petition:- Order XXXIX, R 7 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 purposes 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." 14. The aforesaid provision is distinct to the provision for appointing Commissioner under Order 26, Rule 9 CPC which reads as under:- Order XXVI, R 9 "9. (2) The provisions as to execution of process shall apply, mutatis mutandis, to persons authorized to enter under this: rule." 14. The aforesaid provision is distinct to the provision for appointing Commissioner under Order 26, Rule 9 CPC which reads as under:- Order XXVI, R 9 "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 eleucidating 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: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." 15. Thus, under the provisions of Order 39, Rule 7 CPC, the Court would not appoint a Commissioner to enter on the land of a stranger to the suit and prepare an inventory of the property nor it would submit a report relating to books and documents which are not subject matters of the suit and only evidentiary in character. He cannot make search under this room. The Commissioner, however, is required to submit and confine to inspect to the property which is the subject matter of the suit. Ascertaining the conditions of the demised premises by local inspection falls within the purview of Order 39, Rule 7 CPC and not under Order 26, Rule 9 CPC 16. In Allahabad Bank vs. Sourendra Nath Shaw and another: AIR 1997 (Calcutta) 80 it was held as under:"......It is true that the Commissioner has not been examined in this case. It is also true that such appointment of Commissioner for ascertaining the condition of the concerned premises or any part thereof by making local inspection comes within the purview of Order 39, Rule 7 and not Order 26, Rule 9, C.P.C. (see, Nitendranath vs. Subhas, AIR 1981 Calcutta 319 , Amulya vs. Ananda AIR 1933 Calcutta 475 " 17. In Ramswarup vs. Mst. Kesar and another: AIR 1958 (Raj.) 218 it was held as under:- "8. We have given our careful consideration to the said arguments, but we find ourselves unable to accept it as correct. In Ramswarup vs. Mst. Kesar and another: AIR 1958 (Raj.) 218 it was held as under:- "8. We have given our careful consideration to the said arguments, but we find ourselves unable to accept it as correct. In our opinion, Order 39, Rule 7(1)(a) is primarily meant to empower the court to make an order about the detention, preservation and inspection of the property in dispute in the suit but it further authorises the court to pass similar orders about other property as to which any question might arise therein. This does not mean that the Court is authorised to pass an order on the application of one party to make a search of the documents which might be in the possession of the opposite party and then detain them by saying that a question might arise about them in the suit." 18. In Kalandi Swain and other vs. Braja Kishore Dass and others : AIR 1980 Orissa 98 it was held as under : "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 the word 'inspection, appears in Rule 7, it is evident therefrom that provision for the same has been made mostly for the purpose of keeping on record the existing condition of the property so that if the same is subjected later on to any change, deterioration or mischief by any of the parties or by any other agency or reason that can be known by the court if and when desired or required. But the purpose of deputing a pleader commissioner under Rule 9 of Order 26 if for ascertaining, collecting or elucidating facts in respect of any matter in dispute and other things as mentioned in that Rule, after proper scrutiny, examination and sifting of materials. That is why such a report is automatically admitted in evidence and forms a part of the record, whereas an inspection report under Order 39, Rule 9, submitted on mere looking into matters, is not treated that way or given that importance." 19. That is why such a report is automatically admitted in evidence and forms a part of the record, whereas an inspection report under Order 39, Rule 9, submitted on mere looking into matters, is not treated that way or given that importance." 19. The Commissioner appointed under Order 39, Rule 7 CPC has thus to conduct the inspection of the subject matter of the property which is a subject matter of the suit or as to which any question may arise therein. 20. A look at the order dated 10/07/2015 by which the Commissioner was appointed by the learned trial court would show that there was a specific averment that the plaintiff-respondent has a convenient and broad way directly leading towards his lands and the way alleged from the lands of the defendants-petitioner was not available at the site and there was only a small footpath. Thus, the dispute was in terms of Order 39, Rule 7 CPC and the question which arose for inspection was available before the Commissioner. However, the Commissioner has failed to conduct the inspection with regard to the question involved before the Court and has only conducted inspection of a particular site without giving his report relating to the broader way available for leading to the lands of the plaintiff-respondent. 21. In Subhaga and others vs. Shobha and others: (supra), the Apex Court was dealing with a cause relating to an order passed for appointing Commissioner under Order 26, Rule 9 & 10 CPC for identification of the immovable property and its boundaries and in the said facts, the court observed it was not necessary in that suit to survey all adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff and only the boundaries were required to be measured. Thus a case decided under Order 26, Rule 9 & 10 CPC would not apply to the present facts where Commissioner was appointed for conducting inspection relating to the dispute involved for disposal of the application under Order 39, Rule 1 & 2 CPC where the important point involved is whether there is an alternative way available and the question relating to three aspects for grant of in junction namely; prima-facie case, balance of convenience and irreparable injury would be looked into. Thus, while the Commissioner conducts investigation under Order 26, Rule 9 CPC, the Commission appointed under Order 39, Rule 7 CPC conducts local inspection. 22. Having said so, this Court is satisfied that the learned court below, while examining the objections raised by the defendants-petitioners, has failed to take notice of the effect of the provisions of Order 39, Rule 7 CPC. 23. In the light of above, the order impugned passed 07/08/2015 passed by the learned trial court is quashed & set aside with further direction to the learned trial court to get a fresh inspection conducted of the dispute site by the Commissioner in terms of the order dated 10/07/2015 and in the light of the observations made herein above and thereafter proceed with the case in accordance with law. 24. The writ petition is accordingly allowed.