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2022 DIGILAW 488 (KAR)

Y. Riyaz Pasha v. M. S. Ramamohan

2022-04-06

H.B.PRABHAKARA SASTRY

body2022
JUDGMENT 1. In a suit filed by the present petitioner as plaintiff in O.S.No.150/1994, in the Court of the learned Principal Civil Judge & Judicial Magistrate First Class at Srinivaspur (hereinafter for brevity referred to as "the Trial Court"), for the relief of permanent injunction, declaration of title and mandatory injunction, the present respondent No.1 as defendant No.1 had filed an application under Order XXVI, Rule 9 read with Sec. 151 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as "the CPC"), seeking appointment of a Court Commissioner for local investigation, with neat sketch and Mahazar. 2. The said interlocutory application filed under Order XXVI, Rule 9 read with Sec. 151 of the CPC, which was numbered as I.A.No.10 came to be dismissed by the Trial Court, under its order dtd. 16/2/2000. Thereafter the suit of the plaintiff also came to be dismissed as devoid of merits by the order of the Trial Court dtd. 12/12/2013. Challenging the same, the plaintiff filed an appeal in R.A.No.103/2015 in the Court of the learned Principal District and Sessions Judge at Kolar (hereinafter for brevity referred to as "the first appellate Court"). 3. During the pendency of the said regular appeal, the appellant, who was the plaintiff in the Trial Court himself filed an application i.e. I.A.No.V under Order XXVI, Rule 9 read with Sec. 151 of the CPC, seeking appointment of a Court Commissioner. After contest, the said application, by the order of the first appellate Court dtd. 27/3/2017 came to be dismissed on the ground of res judicata. Aggrieved by the same, the original plaintiff who was the appellant in the regular appeal before the first appellate Court, has filed this writ petition. 4. Learned counsel for the petitioner (plaintiff) in his arguments submitted that, when in fact the first application (I.A.No.10) filed by the defendant No.1 in the original suit though was under Order XXVI, Rule 9 read with Sec. 151 of the CPC, but it had too vague with ambiguous prayer in it, as such, the Trial Court rejected the said application. However, in the changed circumstance, since conducting a local investigation for denoting the measurements and boundaries of the suit schedule property was very much necessitated, the plaintiff (petitioner herein) was constrained to file a similar application in the regular appeal before the first appellate Court. However, in the changed circumstance, since conducting a local investigation for denoting the measurements and boundaries of the suit schedule property was very much necessitated, the plaintiff (petitioner herein) was constrained to file a similar application in the regular appeal before the first appellate Court. However, the first appellate Court, without appreciating the same has erroneously rejected his application. 5. Per contra, learned counsels for the respondents in their arguments submitting that, the very plaintiff who had earlier opposed the similar application filed by the defendant No.1 in the original suit, cannot now maintain a second such application, have prayed to dismiss the present writ petition. 6. It is not in dispute that during the pendency of the original suit, the defendant No.1 who is the respondent No.1 herein had filed an I.A.No.10 under Order XXVI, Rule 9 read with Sec. 151 of the CPC, seeking appointment of a Court commissioner for local investigation. As could be seen from the certified copy of the said application which is placed before this Court today, the purpose for the appointment of the Court Commissioner was shown to be for similar local investigation pertaining to the suit schedule property. What that local investigation meant and what the applicant (defendant No.1/respondent No.1 herein) is desirous of getting through the Court Commissioner was neither explained in the application nor in the affidavit in clear terms. In the affidavit also, he has stated that the application was for appointment of a Court Commissioner for local investigation with neat sketch and Mahazar. Thus, even in the affidavit also, he has not stated as to what the Court Commissioner was expected to do in the course of his local investigation. This vagueness in his application was the main ground of attack for the plaintiff (petitioner herein) who opposed the said application in the original suit in the Trial Court. It is considering the objection raised by the plaintiff that the said application (I.A.No.10) was too vague, the Trial Court in its order dtd. 16/2/2000 has dismissed the said I.A.No.10 filed by the defendant No.1. However, simultaneously it also made an observation that, since the suit was filed by the plaintiff, the burden is upon the plaintiff himself to prove his alleged factum of possession of the suit schedule property. 16/2/2000 has dismissed the said I.A.No.10 filed by the defendant No.1. However, simultaneously it also made an observation that, since the suit was filed by the plaintiff, the burden is upon the plaintiff himself to prove his alleged factum of possession of the suit schedule property. However, the said original suit came to be dismissed on its merit and the plaintiff has preferred a regular appeal in R.A.No.103/2015. In the said regular appeal, it is the plaintiff (petitioner herein) who has filed a similar application under Order XXVI, Rule 9 read with Sec. 151 of the CPC, which was numbered as I.A.No.V for the very same purpose of appointing a Court Commissioner. The said application was opposed by the respondents on the contention that the application filed by the plaintiff was hit by the principle of res judicata. The first appellate Court, in the impugned order in R.A.No.103/2015, by relying upon a judgment of a co-ordinate bench of this Court, in the case of G. Ammavva Vs. Gowramma reported in 2002 (4) KCCR SN 362 was pleased to hold that the principle of res judicata is applicable even for the interlocutory applications also and further after a detailed analysis, dismissed the application of the plaintiff (petitioner herein) holding that, it is hit by the principle of res judicata. Except that, the only other observation made by the first appellate Court was that, the additional ground to receive additional evidence at the appellate stage by appointing a Court Commissioner are not specifically pleaded. The above reasoning of the first appellate Court that the application was hit by the principle of res judicata has to be considered and analysed. 7. Admittedly, the matter has not been adjudicated between the parties, though in the original suit and in the regular appeal, the parties were same and the subject matter was also the same. The appointment of the Court Commissioner that was sought for was for the purpose of local investigation as stated in the first application (filed by defendant No.1), which was numbered as I.A.No.10 in the Trial Court. However, except that, nothing was mentioned as to what the Court Commissioner was expected or required to do in the said local investigation. The appointment of the Court Commissioner that was sought for was for the purpose of local investigation as stated in the first application (filed by defendant No.1), which was numbered as I.A.No.10 in the Trial Court. However, except that, nothing was mentioned as to what the Court Commissioner was expected or required to do in the said local investigation. On the other hand, in the second application of the plaintiff in the regular appeal in the form of I.A.No.V, the applicant (plaintiff - petitioner herein) has come up with a specific reason as to for what purpose, the Court Commissioner is required to be appointed. 8. It is also not the contention of the respondents herein that the appointment of a successive Commissioner or Commissioner for more than one occasion is prohibited expressly by law. In the case of Arjun Singh Vs. Mohindra Kumar and others [AIR 1964 SUPREME COURT 993], wherein also, the question of the principle of res judicata was involved, the Hon'ble Apex Court was pleased to observe that, the scope of principle of res judicata is not confined to what is contained in Sec. 11 but is of more general application. Again, res judicata could be as much applicable to different stages of the same suit as to findings on issues in different suits. If the Court which rendered the first decision was competent to entertain the suit or other proceeding, and had therefore competency to decide the issue or matter, the circumstance that it is a tribunal of exclusive jurisdiction or one from whose decision no appeal lies would not by themselves negative the finding on the issue by it being res judicata in later proceedings. Where the principle of res judicata is invoked in the case of the different stage of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. 9. 9. Thus, in the instant case, as already observed above, even though the second application filed in the proceedings though in the appeal was under the same provision of law, i.e. Order Rule XXVI Rule 9 read with Sec. 151 of the CPC, for the same purpose of appointment of a Court Commissioner, but as analysed above, the previous application filed in the matter at the stage of the original suit as I.A.No.10 was rejected by the Trial Court on the ground that, the application was too vague and also that the plaintiff had various other avenues to discharge his burden of proving for which the appointment of Commissioner was not required. As such, the actual contention of the applicant therein (defendant No.1) as to what the local investigation he intended to be undertaken by the Commissioner and was there any necessity for the same was not considered or reasoned by the Trial Court. Where as in the second application (I.A.No.V), though the applicant (petitioner herein) has stated for what purpose the applicant intends to have the appointment of a Court Commissioner, however, the first appellate Court, without considering all those aspects, simply applying the principle of res judicata by going through the objection that a similar application under Order XXVI, Rule 9 read with Sec. 151 of the CPC was earlier considered and dismissed in the proceedings in the Trial Court, proceeded to reject the application on the principle of res judicata. Since the disposal of the first application by the Trial Court through I.A.No.10 cannot be considered absolutely on its merit, but more on the vagueness of the application, it cannot be held that, the question involved being the same, has already been adjudicated between the parties previously. Thus, the reasoning of the first appellate Court in rejecting the I.A.No.V filed in R.A.No.103/2015 that the principle of res judicata applies in the instant case is an erroneous finding. 10. Since the I.A.No.V came to be dismissed solely on the ground of a single point of alleged principle of res judicata and which finding is now proved to be an erroneous finding, the said finding deserves to be set aside and since the first appellate Court has not considered the said application on its merit, the matter requires to be remanded for considering the I.A.No.V afresh by the first appellate Court. In the said process, the first appellate Court shall not take into consideration its previous passing observation made by it in para.18 of its order that, 'the additional grounds to receive the additional evidence in the appellate stage by appointing Commissioner are not specifically pleaded' would not come in way. However, the first appellate Court would be at liberty to consider all other aspects touching the merit of the I.A.No.V under consideration. 11. Ordering accordingly, the writ petition stands partly allowed. The impugned order dtd. 27/3/2017 passed on I.A.No.V in R.A.No.103/2015 by the Court of the learned Principal District and Sessions Judge at Kolar, stands quashed and the said I.A.No.V stands restored on the file of the first appellate Court for its fresh disposal in accordance with law, after hearing the arguments of both side on the said application afresh. Since the original suit from which the regular appeal has arisen is of the year 1994 and the appeal itself is of the year 2015, the early disposal of the matter by the first appellate Court, is highly appreciated.