Research › Search › Judgment

Telangana High Court · body

2020 DIGILAW 334 (TS)

Mohd. Taher Quershi v. Syed Abdul Saleem Pasha

2020-03-03

A.RAJASEKHAR REDDY

body2020
ORDER : 1. This civil revision petition, under Article 227 of the Constitution of India, is filed aggrieved by the order dated 24.6.2019 passed in IA No. 51 of 2019 in OS No. 29 of 2019 by the Junior Civil Judge, Tandur, Ranga Reddy District, appointing Advocate Commission to note down the physical features and boundaries of the suit property with the assistance of Mandal Surveyor and issuance of warrant for that purpose; to execute the same within a time frame. The parties hereinafter will be referred to as they are arrayed in the suit. 2. Plaintiff is the respondent herein. The revision petitioners are the defendants in the suit. Suit OS No. 29 of 2019 was filed for perpetual injunction. In suit, the plaintiff filed an interlocutory application under Order XXXIX Rules 1 and 2, read with Section 151 CPC seeking to grant ad-interim injunction restraining the defendants from interfering with the peaceful possession and enjoyment over the suit property. 3. Sri. N. Vasudeva Reddy, learned Counsel for the petitioners-defendants would submit that without there being any application by either of the parties seeking for appointment of an Advocate Commission, the Court below ought not to have appointed Commission suo-motu ex-parte as no such power vested in it. Learned Counsel further submits that appointment of Advocate Commission suo-motu in an application filed the Order XXXIX Rules 1 and 2 CPC, at the very initial stage amounts to gathering of evidence, when evidence on both sides is to be otherwise adduced by the parties. Learned Counsel also submits that in a suit for bare injunction, appointment of Advocate Commission is to be resorted to sparingly, but not routinely and; the plaintiff has to stand or fall on the strength of his own evidence and even otherwise this is not a fit case for appointment of Advocate Commission and, therefore, seeks to set aside the impugned order. In support of his contentions, learned Counsel placed reliance on decision of this Court in G. Parvatha Reddy vs. Boya Nagarjuna @ Nagarjuna Rao, 2006 (1) ALT 146 : 2005 (6) ALD (NOC 262). 4. Per contra, Mrs. Laxmi Manohar learned Counsel for the respondent-plaintiff would submit that the Court has suo-motu power and in appropriate cases, where it deems fit to appoint an Advocate Commission and the report of the Commissioner will better assist the Court. 4. Per contra, Mrs. Laxmi Manohar learned Counsel for the respondent-plaintiff would submit that the Court has suo-motu power and in appropriate cases, where it deems fit to appoint an Advocate Commission and the report of the Commissioner will better assist the Court. Learned Counsel also submits that the impugned order being a discretionary order and no prejudice is caused to the other side, the impugned order warrants no interference. 5. The point for consideration is whether the suo-motu power exercised by the Court below for appointment of Commission ex-parte without reference to any provision of law for appointment of an Advocate Commission, in the light of a specific provision of law provided under Order XXVI Rule 9 CPC is sustainable in law? 6. Appointment of Advocate Commission for noting down the physical features and boundaries of the land with the assistance of Mandal Surveyor could be passed under Order XXVI Rule 9 CPC, which reads as follows: “Commission to make local investigation - In any suit in which the Court deems as 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” 7. The Court below in the impugned order has not referred to any provision of law nor stated the compelling circumstances for such an appointment of Commission suo-motu ex-parte. The statutory provision underlined under Order XXVI Rule 9 CPC, which is extracted supra itself is self-explanatory. The impugned order passed is not on an application by either of the parties under the said provision but suo-motu. The power of the Court to pass appropriate orders to meet and secure the ends of justice is traced to a statutory provision of law. It is settled proposition of law that judgments cannot be read as statutes of law. The impugned order passed is not on an application by either of the parties under the said provision but suo-motu. The power of the Court to pass appropriate orders to meet and secure the ends of justice is traced to a statutory provision of law. It is settled proposition of law that judgments cannot be read as statutes of law. The Courts should not place reliance on the decisions without discussing as to how the situation fits in with the factual situation Circumstantial flexibility, one addition or a different fact, makes a difference between conclusions in two cases. Union of India vs. Amrit Lal Manchanda, 2004 (1) ALD (Cri.) 525 (SC) : (2004) 3 SCC 75 and Haryana Financial Corporation vs. Jagdamba Oil Mills, 2002 (2) ALD 89 (SC) : (2002) 3 SCC 496 . 8. Commission can be appointed on an application being filed under Rules 5, 19 and 20 of Order XXVI CPC, which reads as follows: “5. Commission or request to examine witness not within India - Where any Court to which application is made for the issue of a commission for the examination of a person residing at any place not within India is satisfied that the evidence of such person is necessary, the Court may issue such commission or a letter of request.” “19. Cases in which High Court may issue Commission to examine witness - (1) If a High Court is satisfied: (a) that a foreign Court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it. (b) that the proceeding is of a civil nature. (c) that the witness is residing within the limits of the High Court's appellate jurisdiction, it may, subject to the provisions of the Rule 20, issue a commission for the examination of such witness. (2) Evidence may be given of the matters specified in Clauses (a), (b) and (c) of subtitle (1): (a) by a certificate signed by the consular officer of the foreign country of the highest rank in India and transmitted to the High Court through the Central Government. (b) by a letter of request issued by the foreign Court and transmitted to the High Court through the Central Government. (c) by a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding. 20. (b) by a letter of request issued by the foreign Court and transmitted to the High Court through the Central Government. (c) by a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding. 20. Application for issue of commission - The High Court may issue a commission under Rule 19: (a) upon application by a party to the proceeding before the foreign Court. (b) upon an application by a law officer of the State Government acting under instructions from the State Government.” 9. It is true appointment of Commissioner under Order XXVI Rules 5, 19 and 20 of CPC provides for making an application for that purpose, but such a requirement of filing an application is not to be found in Order XXVI Rule 9 CPC which goes to show that Court could appoint Advocate Commission if 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, such person as it thinks fit directing him to make such investigation and to report thereon to the Court. 10. This Court in G. Parvatha Reddy's case (supra), while considering a similar like situation of appointment of Advocate Commission for local inspection, on an application filed under Order XXXIX Rule 1 CPC for ad-interim injunction held that there is no provision in Order XXVI of CPC conferring suo-motu powers on the Trial Court or any Court vested with the powers under CPC to appoint Commissions either for the purpose of examination of witnesses, or to make local investigations, or for the performance of a ministerial act or for the purpose of examining and adjusting the accounts. But Order XXVI Rule 9 CPC does not contemplate, unlike in Rules 5, 19 and 20 making an application by either of the parties to the proceedings, for appointment of Commission. If Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute it could appoint Commission. In G. Parvatha Reddy's case (supra), the distinction in the language used in Rules 5, 19 and 20 and that of Rule 9 of Order XXVI CPC is not noticed. If Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute it could appoint Commission. In G. Parvatha Reddy's case (supra), the distinction in the language used in Rules 5, 19 and 20 and that of Rule 9 of Order XXVI CPC is not noticed. It is settled and widely accepted in the legal parlance that where a binding precedent or relevant provision of law had not been brought to the Court's attention and the Court gives the decision it is per incuriam. Rule 9 gives a clear leverage to the Court if it deems fit to order local inspection by appointment of Commission and to this extent the view expressed in the said decision that the trial Court or any Court is not vested to appoint Commissions suo-motu is per incuriam. A judgment delivered without argument and without reference to the relevant statutory provisions is not binding. Where, by obvious inadvertence or oversight, a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of a binding precedent. Municipal Corporation of Delhi vs. Gurnam Kaur, AIR 1989 SC 38 , Mamleshwar vs. Kanahaiya Lal, AIR 1975 SC 907 and Morelle vs. Wakeling. 11. In Shaik Mohammad Rafi vs. Correspondent, SFIEM School, 2014 (1) ALD 537 , this Court observed that the Court may suo-motu appoint a Commissioner if necessary, though the issue had not directly fallen for consideration. It was also observed that in a given case, the Court feels that the report of a Commissioner may help the Court in deciding the question in controversy before it relating to identification, location, measurement etc., of the property in dispute, it may appoint an Advocate Commissioner. In the said case the Court dealt with an application filed under Order XXVI Rule 9 CPC by the defendant in the suit. I am in agreement with the view expressed by this Court in Shaik Mohammad Rafi's case (supra), in view of the language contained in Order XXVI Rule 9 CPC. 12. Now, it is deduced that invoking statutory power under Order XXVI Rule 9 CPC, the Court can exercise suo-motu power and appoint Advocate Commission as Rule 9 does not contemplate filing of an application. 12. Now, it is deduced that invoking statutory power under Order XXVI Rule 9 CPC, the Court can exercise suo-motu power and appoint Advocate Commission as Rule 9 does not contemplate filing of an application. But Order XXVI Rule 9 CPC at which stage of the suit such a discretion vested in the Court could be exercised is again a toss question. It can be illustratively stated if not exhaustively that in the event the Trial Court deems fit to appoint an Advocate Commission, such a course is to be adopted dispassionately, see that the interest of both the parties is balanced including the terms of the warrant are conditioned and such an appointment does not allow premium to one party over the other or gather of evidence for one side to the detriment of other side. 13. In the instant case the proceedings are at the initial stage and whether appointment of Advocate Commission is required or not at that stage, a notice should have been given to other side or not was not considered by the Court below. But the Court below suo-motu appointed the Advocate Commission. As in this case, usually in a suit for perpetual injunction, possession of the property assumes importance and it would be the crux of the matter and by a routine order, an Advocate Commission cannot be appointed that too suo-motu ex-parte unless the same is justifiable by giving reasons. In this case the Court below relied on the judgment of the Apex Court in Haryana Wakf Board vs. Shanti Sarup, (2008) 8 SCC 671 , wherein the Apex Court found that wherever there is dispute of boundaries, the Court can appoint Commissioner. The Apex Court was dealing with the issue of appointment of Commissioner in a case arising against the final judgment and decree. Moro so, the party (Punjab Waqf Board) has filed application before the Trial Court as well as appellate Court (High Court) for appointment of Commissioner for demarcation of property, but the same was dismissed. In the instant case the situation is otherwise, the proceedings are at the initial stage of considering an application to grant ad-interim injunction and no palpable reason is given by the Court below why Advocate' Commissioner is required to be appointed ex-parte, suo-motu dispensing notice to other side. In the instant case the situation is otherwise, the proceedings are at the initial stage of considering an application to grant ad-interim injunction and no palpable reason is given by the Court below why Advocate' Commissioner is required to be appointed ex-parte, suo-motu dispensing notice to other side. In the case of necessity, ex-parte Commissions may be appointed, if the Court deems it proper. In this case the Court below has not given reasons necessitating for appointment of Advocate Commission ex-parte suo-motu. In view of the same, the impugned order dated 24.6.2019 is liable to be set aside. 14. In the result, the civil revision petition is allowed and the order dated 24.6.2019 passed in IA No. 51 of 2019 in OS No. 29 of 2019 is set aside. However, this order will not preclude the Court below to pass fresh orders to appoint Advocate Commission if required, by giving reasons, after notice or on the application of the parties. Miscellaneous petitions, if any, pending in this revision petition shall stand closed. There shall be no order as to costs.