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Madhya Pradesh High Court · body

2019 DIGILAW 594 (MP)

Ramjani Khan v. Komal Prasad

2019-08-20

VISHAL MISHRA

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ORDER 1. It is seen from the Order-sheet dated 22.9.2017 that this Hon’ble Court has granted interim relief and stayed the proceedings of the trial Court in COS No. 5-A/2015, and the case is pending since almost two years and despite of service of the respondents none appeared on behalf of respondent No. 1, therefore, the matter is finally heard. 2. The present petition has been filed by the petitioner challenging the Order dated 4.9.2017 passed by Additional Civil Judge Class-I to the Court Ist Civil Judge Class-I, Ashoknagar whereby, the application under Order 26 rule 9 CPC for appointment of the Commissioner filed by the plaintiff/respondent No. 1 at the stage of the plaintiff’s evidence, is allowed. Counsel for the petitioners has submitted that the learned trial Court has wrongly allowed the application and has exceeded its jurisdiction in issuing directions to the Commissioner to find out that who is the Bhumiswami of the property, whether any encroachment is being done etc.? He has drawn attention of this Court to the sale-deed and the map attached with the sale-deed as well plaint, wherein the relief which has been claimed by the plaintiff is with respect to survey No. 1306/1 area being 0.063 hectare. From paragraph 1 of the plaint he has shown that the civil suit for declaration and injunction and for removal of encroachment is being filed with respect to survey No. 1306/1 area 0.063 hectare along with other survey numbers. It is alleged that the area of both the survey numbers is same and as 1306 is a larger survey number than survey No. 1306/1. It is further alleged that case is at plaintiff’s evidence stage when the Order was passed. He has further drawn attention of this Court to the application under Order 26 rule 9 CPC and has argued that there is no mention of any dispute with respect to boundaries in the aforesaid application and once the plaintiff is not the Bhumiswami of survey No. 1306 which is clear from the sale-deed then he has no right to file an application under Order 26 rule 9 CPC for appointment of Commissioner for the aforesaid land. He has relied upon the judgments of the Hon’ble High Courts in the case of Ashutosh Dubey and Anr. v. Tilak Grih Nirman Sahkari Samiti & Anr. reported in 2004 (3) MPLJ 213 and Ashok Kumar Patel & Ors. He has relied upon the judgments of the Hon’ble High Courts in the case of Ashutosh Dubey and Anr. v. Tilak Grih Nirman Sahkari Samiti & Anr. reported in 2004 (3) MPLJ 213 and Ashok Kumar Patel & Ors. v. Ram Niranjan & Ors. reported in 2007 (III) MPWN 123 and in the case of Babukhan v. Kaptan Singh reported in 1980 (II) WN 261 and in the case of Rais Khan and Anr. v. Pradeep and Ors. reported in 2016 RN 239 , and has argued that application under Order 26 rule 9 CPC should not be entertained for collection of evidence. The leaned trial Court has exceeded its jurisdiction and has directed the Commissioner to find out that who is the Bhumiswami of the property in question, who is in possession etc. which is beyond the scope of Order 26 rule 9 CPC. Accordingly, has prayed for setting aside of the impugned Order. 3. Heard learned counsel for the petitioner and perused the record. 4. The learned trial Court by allowing the application under Order 26 rule 9 of CPC has directed the Commissioner as under: Þdfe'uj dks funsZf'kr fd;k tkrk gS fd og oknxzLr Hkwfe esa tkdj fuEu fcUnqvksa ij tk¡p dj izfrosnu U;k;ky; esa izLrqr djs - 1- okni= layXu ekufp= esa oknxzLr nqdku ,oa Hkw&[k.M dk Hkwfe losZ Øekad 1306 jdck 0-063 gsDVs;j dk Hkw&Hkkx gSA 2- mDr Hkwfe jktLo vfHkys[kksa esa fdlds LokfeRo o vkf/kiR; ds uke banzkt gSA 3- oknxzLr nqdku ,oa Hkw&[k.M ftl losZ uacj ij cuk gS mlds HkwfeLokeh jktLo vfHkys[kksa esa dkSu gSaA 4- rFkk oknxzLr nqdku ,oa Hkw&[k.M ij izfroknh vfrdzked gSA dfe'uj mDr fcUnqvksa ds laca/k esa uki&tksi dj rFkk mDr LFkku dh laiw.kZ tk¡p djus ds mijkar vkxkeh fu;r fnukad 20-9-2017 ;k blds iwoZ vko';d :i ls U;k;ky; esa izLrqr djsaAß 5. Order 26 rule 9 of CPC is required to be seen: “9. Order 26 rule 9 of CPC is required to be seen: “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: 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. 6. It is a settled position of law that Commissioner cannot be directed for collection of evidence as has already been stated by counsel for the petitioners that the case was at the plaintiff’s stage, therefore, it was for the Court to take the evidence first and in case when the trial Court arrived at the conclusion that there is a dispute which could not be ascertained by the evidence led by the parties, then the application under Order 26 rule 9 CPC should have been concluded and Commissioner should have been appointed. In the present case, civil suit is at the very initial stage, at plaintiff’s evidence stage, the trial Court has directed for appointment of the Commissioner. The Hon’ble High Court in the case of Ashutosh Dubey (supra) has held as under: “6. From the perusal of the Order dated 21.1.2002 when the trial Court considered, I. A. No. 3823/2003 under Order 26 rule 9, CPC has rejected the similar prayer of the petitioner for issuing of the commission for ascertaining the fact that which of the party is in possession of the property. Similar prayer again made by the petitioner which has been allowed by the trial Court. When the similar prayer was rejected by the trial Court on earlier occasion even though at the stage when the trial Court was considering the application under Order 39 rules 1 and 2, CPC, at subsequent stage the similar prayer cannot be allowed. Apart from this, the scope of Order 26 rule 9, CPC is to ascertain the matter in dispute, market value of any property, mesne profit or damages etc. Apart from this, the scope of Order 26 rule 9, CPC is to ascertain the matter in dispute, market value of any property, mesne profit or damages etc. But issuing of commission for investigating the fact that which of the party is in possession of the property is beyond the scope of Order 26 rule 9, CPC. This question has to be decided by the Court after adducing the evidence by the parties. The Court has to record findings in this regard and the aforesaid job of the Court cannot be shifted to the Commissioner. In the circumstances, the trial Court has exceeded his jurisdiction in issuing such a commission ascertaining the fact that which party is in possession of the property.” 7. Hon’ble High Court in the case of Ashok Kumar Patel (supra) has held as under: “7. Having regard to the aforesaid pronouncement of the Supreme Court and the legal position that the Court Commissioner cannot be appointed for collecting evidence empowering him to visit and inspect the suit tiled and to submit the report regarding actual position of the suit filed, the impugned Order passed by the learned trial Court is beyond the scope of Order 26 rule 9 of CPC and is liable to be quashed.” 8. Hon’ble High Court in the case of Babukhan (supra) has held as under: “It is also significant that in their application dated 23.12.1977 filed in the trial Court, which application the Additional District Judge held to have been improperly dismissed by the trial Court, the respondents No. 1 and 2 had prayed for appointment of a Commissioner for spot inspection on the contention that the house was not in existence on the spot. The application was not one for appoint-ment of a Commissioner to give report on the question of possession. For this reason also, the Additional District Judge could not have directed appointment of a Commissioner for the purpose of giving report on the question as to who 'is' in possession the house 'at present.” 9. The application was not one for appoint-ment of a Commissioner to give report on the question of possession. For this reason also, the Additional District Judge could not have directed appointment of a Commissioner for the purpose of giving report on the question as to who 'is' in possession the house 'at present.” 9. Thus, from the aforesaid and reading of Order 26 rule 9 of CPC, it is apparently clear that no such directions could have been issued by the learned trial for appointment of Commissioner, while appointing the Commissioner further directions have been issued to the Commissioner to submit the reports on the certain points as pointed out here-in-above which is not permissible under Order. 10. The Hon’ble Suprme Court in the case of Surya Devi Rai v. Ram Chander Rai, reported in (2003) 6 SCC 675 considering the scope of Article 227 of the Constitution of India has held as under: “38.(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.” 11. In the present case, the learned trial Court has exceeded its jurisdiction in allowing the application under Order 26 rule 9 CPC and has given directions to the Commissioner to find out who is the Bhumiswami of land, who is in possession of land etc., which is per se illegal and contrary to settled legal position of law. The trial Court has virtually its responsibility to the Commissioner, the aforesaid questions are required to be decided by the learned trial Court on the basis of evidence and the Court is required to record its finding on the aforesaid aspects. Allowing the application and issuing directions to Commissioner amounts to collecting evidence which is not permissible. 12. Thus, the Order impugned is appears to be per se illegal and Commission could not have been issued for collection of evidence, hence the Order impugned dated 4.9.2017 is set aside. The application filed under Order 26 rule 9 of CPC is hereby rejected. Learned trial Court is directed to proceed further with the civil suit in accordance with law. Accordingly, writ petition is allowed, no Order as to costs.