Amrik Singh vs Piara Singh

Rakesh Kumar Jain, J.—This revision petition is directed against order dated 15.6.2010 passed by the trial Court, on an application filed by the respondent under Sections 151 and 152 of Code of Civil Procedure,1908 (for short, CPC) by which the respondent has been odrered to be put in possession of the shop in question with the help of police.

Brief facts of the case are that respondent/plaintiff filed a suit for permanent injunction seeking to restrain the petitioner/defendant from interfering in his possession, otherwise than in due course of law. It was alleged that the respondent/plaintiff is in possession of the shop in dispute w.e.f. February, 2010 @ Rs. 500/-per month as rent and a sum of Rs. 1500/- towards advance rent of three months was paid to the defendant/petitioner. It is further averred that the plaintiff is running the business of repairs and tyre puncture in the shop in dispute, but the landlord/petitioner did not accept the advance rent. For the cause of action, it is alleged that it had accrued to the plaintiff/respondent from refusal of the respondent to interfere in his possession.

The suit was filed by the plaintiff on 14.5.2010 in which the following order was passed by the trial Court on 15.5.2010:

Suit received by entrustment. Office report seen. It be registered. Alongwith suit, plaintiff has also moved an application under Order 39 Rule 1 and 2 read with Section 151 C.P.C. and application for appointment of Local Commissioner. After hearing the learned Counsel for the plaintiff, for grant of exparte injunction, I am of the considered view that before taking any view, it is a fit case for appointment of Local Commissioner exparte. Hence, Sh. Pardeep Kumar Mittal is appointed as L.C, who would visit the spot at 3.00 P.M. and submit his report today itself at 3.45 P.M. regarding the actual and factual position of the shop shown by the plaintiff in red colour in the site plan. The L.C. is directed to submit his report regarding machinery etc. installed and operated by the person there. The fee of L.C is assessed as Rs. 1,100/- and Ahlmad is directed to supply the copy of this order alongwith copy of plaint and the original site plan to the L.C. File be again put up at 3.45 P.M. today itself.

On the same day, Local Commissioner submitted his report which reads thus:

I, Pardeep Kumar Mittal, Advocate Civil Courts Dhuri has been appointed as Local Commissioner by the Hon''ble Court vide order dated 15.5.2010, to visit and report regarding the shop in dispute''s actual and factual position shown by the plaintiff in Red colour in the site plan. The report is as under:

1) That I have visited the shop in dispute at about about 3.00 p.m. today and found one Air Compressor, one Hydrolic trolley Jack, 10 old tyres of Trucks, 20 old tyres of Cars, one Almira and tools in the shop in dispute which is managed by one Pyare Singh son of Joginder Singh son of Deva Singh.

2) That thereafter I have enquired about the occupants of all the side of the shop in dispute, which is as under:

East: Babu Khan & Steel ARC Indst. Of Sh. Janak Raj

West: Vacant plot,

North: House of Rajinder Singh,

South: Road

situated at Bagrian Road, Dhuri.

Hence the report is submitted for the perusal of the

Hon''ble Court.

Dt: 15.5.2010

Submitted by Pardeep Kumar Mittal Advocate Civil Courts, Dhuri.

After receiving the aforesaid report of the Local Commissioner, the trial Court passed the following order:

Present:- Sh. Gandhi Singh Advocate, Counsel for the plaintiff.

Report of Local Commissioner received. From the perusal of the report, it is clear that plaintiff is in possession of the shop and is running a tyre repair shop in the said premises. As per averments of the plaintiff and affidavit attached with the application, plaintiff appears to be tenant of the defendant. So, it is a fit case of grant of ex parte injunction. If the injunction is not granted, the very purpose of the suit would be frustrated so, both the parties are directed to maintain status quo with regard to the possession of the property in dispute till 22.5.2010.

Notice of the suit as well as application be issued to defendant for 22.5.2010 on filing of PF copies and draft of summons. Plaintiff is also directed to comply the mandatory of Order 39 Rule 3 CPC uptill Monday and further directed to take the dasti summons to effect service upon the defendant, failing which, the ex parte injunction granted in his favour would stand automatically vacated.

Pronounced.

Sd/- Amrinder Pal Singh, CJ(JD) Dhuri

Dated 15.5.2010

In terms of the aforesaid orders, the defendant/petitiioner appeared on 27.5.2010 and sought time to file written statement and the case was adjourned to 28.5.2010. On that date, written statement was not filed and the case was adjourned to 1.6.2010. On the adjourned date, the defendant/petitioner also filed an application for appointment of Local Commissioner in which notice was issued for 3.6.2010. On 3.6.2010, reply to the application filed by the defendant/petitioner for appointment of Local Commissioner was filed and the case was adjourned to 7.6.2010. On that date, the plaintiff/respondent filed an application under Sections 151 and 152 of CPC to which a reply was filed by the defendant/petitioner and also objections to the report of the first Local Commissioner on 8.6.2000. The trial Court, however, without deciding the objections to the report of the Local Commissioner passed the impugned order.

Learned Counsel for the petitioner has, inter-alia, argued that the report of the Local Commissioner, relied upon by the trial Court, without deciding the objections of the petitioner, is an act of patent illegality and irregularity. It is submitted that neither the Local Commissioner was appointed after notice to him nor he gave given any notice of his inspection of the premises, therefore, there is a clear violation of Order XXVI Rule 18 of CPC.

On the contrary, learned Counsel for the plaintiff/respondent has submitted that there is no error in the report of the Local Comissioner as he reported to the Court what he had seen at the spot. Moreover, there was no direction by the trial Court to the Local Commissioner to issue notice to the petitioner at the time of inspection.

I have heard both the learned Counsel for the parties and perused the record with their assistance.

In the suit filed by the plaintiff/respondent, nothing has been mentioned in the paragraph of cause of action from which it could be anticipated as to what was the immenent threat to the possession of the plaintiff/respondent at the hands of the defendant/respondent. However, the trial Court while granting temporary injunction sought the help of the Local Commissioner to ascertain actual and factual position of the shop, but at the time while passing the exparte order, no direction was given to the Local Commissioner to give notice to the petitioner at the time of inspection of the shop in dispute. However, when the petitioner filed an application for appointment of Local Commissioner, in which notice was issued and reply was filed, the present application under Sections 151 and 152 CPC was filed by the plaintiff though at that time, objections filed by the petitioner dated 08.6.2010 against the report of the Local Commissioneer were already on record. In the said objections, the petitioner had alleged that:

That the Local Commissioner appointed by the Hon''ble Court never visited the spot, nor enquired regarding the actual and factual position of the shop in dispute from the neighbourers, nor the lock and key of the shop in dispute was in possession of the plaintiff. The defendant is running the business for the sale of khal and feed for the lost more than two years and on 15.5.2010 the defendant is in possession. Sh. Pardeep Kumar Mittal Advocate Dhuri did not visit on 3 P.M. on 15.5.2010 in the shop. The Local Commissioner has wrongly submitted in his report regarding existing of One Air Compressor, one Hydrolic Trolley, Jeck, 10 old tyres of trucks, 20 old tyres of cars, one Almirah and tools in the shop in dispute. The Local Commissioner has also wrongly mentioned in his report that the above said items are managed by one Piara Singh son of Joginder Silngh s/o Deva Singh. The Local Commissioner has prepared and submitted the report at the instance and as per wishes of the plaintiff without visiting the spot. The plaintiff was never in possession over the shop, nor the items mentioned above were ever existing in the shop, nor the Local Commissioner visited in the shop on 15.5.2010, and as such the report of Local Commissioner is not tenable.

The Local Commissioner was admittedly appointed by the trial Court under Order XXVI Rule 9 CPC who had to follow the procedure provided under Order XXVI Rule 10 CPC. It is also provided Under Order XXVI Rule 18 CPC that where a Commission is issued under this order, the Court has to direct that the parties to the suit should appear before the Commissioener in person or by their agents or pleaders. This opportunity was not granted by the trial Court even at the time when the order was passed nor has decided the objections dated 08.6.2010 before passing the impugned order dated 15.6.2010. Thus, in my view, there is an apparent error in the impugned order. In this regard, my view is supported by a judgment of this Court reported as Shambhu Dayal v. Smt. Pushpa Kanta ILR 1985 (1) P&H 176.

In view of my above discussion, this revision petition is allowed. The impugned order is set aside and the trial Court is directed to pass fresh order in accordance with law after taking into account the objections filed by the petitioner against the report of the Local Commission. No costs.