Bijendra Mishra and Others vs Jagdish Mishra and Others

Binod Kr. Roy, J.—Through this civil revision application the plaintiffs pray to set aside an order rejecting their petition dated 10 9-1986, through which they had prayed for appointment of a survey knowing Advocate Commissioner, on the grounds inter alia that the proposed appointment will not be of any use to either side or in deciding the suit and that the points raised therein can be decided on the basis of the evidence adduced by the parties.

Mr. Umashankar Singh No. 2, learned Counsel for the petitioners contends that even though the impugned order is interlocutory in nature it has been passed by completely misconceiving the provisions of Order XXVI Rule 9 of the CPC (hereinafter referred to as ''the Code'') and as it amounts to ''case decided'' within the meaning of Sub-section (1) of Section 115 of the Code and covered by the explanation attached under Sub-section (2) of the aforementioned section is liable to be set aside in civil revision. Mr. Singh in support of his propositions relied on Ramji Ram v. Ramashre Raut AIR 1994 Pat 761; Ramkirpal Missir and Others Vs. Mahesh Pandey and Others, .

In Ramkirpal Missir and Others Vs. Mahesh Pandey and Others, , after relying upon certain observations in AIR 1924 Pat 761 (supra) an order appointing pleader Commissioner was set aside in revision u/s 115 of the Code on the ground that there would be calamitious waste of time and money if a roving enquiry, as ordered by the Munsif, is made but still the Munsif was left with a discretion to issue a fresh commission after strictly following the provisions under Order XXVI, Rule 9 of the Code.

The sole question in this case is as to whether an order refusing to appoint a pleader Commissioner is a case decided or not.

Relevant part of Section 115 of the Code as amended by the CPC (Amendment) Act (104 of 1976) runs as follows:

(i) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto

* * * * * Explanation.--In this Section, the expression any case which has been decided includes any order made, or any order deciding an issue in the course of suit or of the proceeding.

(Emphasis added).

In the case of Central Bank of India Vs. Shri Gokal Chand, the Supreme Court held to the effect that the orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises fixing a date of hearing and the admissibility of a document or the relevancy of a question all these are interlocutory orders, which are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding and they regulate the procedure only, and do not affect any right or liability of the parties (emphasis added). After review of several decisions of the Supreme Court in the case of Ramgulam Choudhary and Others Vs. Nawin Choudhary and Others, , it was held by Untwalia, J. (as he then was) to the effect that the orders allowing or disallowing some questions in examination-in-chief or cross-examination, wrong admission of documents in evidence, confirming or setting aside a pleader Commissioner''s report and ordering further investigation are such interlocutory orders, which do not decide right or obligation of parties and thus can not be interfered with u/s 115 of the Code as they do not come within the expression case decided (Emphasis added). In ILR LXIII Pat 595, a division bench of this Court again held that a case may be decided if the Court adjudicates some rights or obligation of the parties in controversy for the purposes of suit or the proceeding.

After the amendments in the Code introduced by Act 104 of 1976,in Madhu Limaye Vs. The State of Maharashtra, a three Judges Division Bench of the Supreme Court reiterated the opinion expressed in Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, wherein it was held that:

A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy.

It cannot be said that the Supreme Court was not aware of the explanation added u/s 115 by Act 104 of 1976 inasmuch as this judgment is post amendment judgment. In Ballabhadas Mathurdas Lakhani and Others Vs. Municipal Committee, Malkapur, , it was laid down by the Supreme Court to the effect that the decision of the Supreme Court is binding on the High Courts and the High Courts cannot ignore it because they thought that relevant provisions were not brought to the notice of the Supreme Court (emphasis is added). It is thus clear that repeatedly the Supreme Court had reiterated that a case may be said to be decided only if for the purposes of the suit or proceeding some right or obligation of the parties in controversy is being decided and in my view the impugned order is not a case decided and thus no revision lies before this Court u/s 115 of the Code.

My view also finds complete support from another judgment of this very Court reported in Damru Mahto v. Khagia reported in 1984 BLJR 159 : 1984 PLJR 79 in which it was categorically held that against an order rejecting an application for appointment of survey knowing Commissioner no civil revision lies as it does not amount to a case decided within the meaning of the expression used in Section 115 of the Code. This question which now stands settled by the Supreme Court (supra) never fell for consideration in the cases Ramkirpal Missir and Others Vs. Mahesh Pandey and Others, and AIR 1924 Pat 761 relied upon by the learned Counsel for the petitioners and thus they are not binding precedent. This apart the learned Counsel for the petitioners could not satisfy me in regard to the restrictions imposed on this Court under Clauses (a) and (b) of the proviso added by the amendment after Sub-section (1) of Section 115 of the Code.

Before I part, I must clarify that the Court below itself has observed that the point raised by the plaintiffs in their petition can be decided on the basis of evidence, which obviously means that it is open for the plaintiffs to take their own survey knowing pleader Commissioner to take measurement of the land in question and get a report submitted and proved by him at the trial While so doing, the plaintiffs can defenitely make a request to Court to restrain the defendants from not interfering with the investigation work by that private survey knowing pleader Commissioner. That apart, on the language of Order XXVI, Rule 9 of the Code it is clear that the Court may appoint a Commissioner, if it considers to be requisite or proper for the purpose of elucidating any matter in dispute which is left doubtful on the evidence taken before the Court.

In the result this civil revision application is dismissed but in the circumstances there shall be no order as to costs.