Deny @ Dineshbhai Amarshi Ajmera and Another vs Khutejabibi and Another

Abhilasha Kumari, J.—Rule. Mr. S.P. Majmudar, learned advocate, waives service of notice of Rule for respondent No. 1. Though respondent No. 2 has been served with Notice, none has appeared on his behalf. On the facts and in the circumstances of the case, and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally. This petition, under Articles 226 and 227 of the Constitution of India, has been preferred by the petitioners (original defendants Nos. 2 and 3 in Special Civil Suit No. 125 of 2012), laying challenge to the order dated 12.03.2012, passed by the learned 18th Additional Senior Civil Judge, Surat, below the application at Ex. 6, whereby, the application of respondent No. 1 (original plaintiff) for issuance of a Court Commission, has been allowed.

Briefly stated, the relevant facts for the decision of the petition are that, respondent No. 1 instituted the above-mentioned suit for declaration, permanent injunction and cancellation of a Registered Sale Deed regarding the suit property. During the pendency of the suit, respondent No. 1 filed the application at Ex. 6 under the provisions of Order 26 Rule 9 of the Code of Civil Procedure, 1908 ("the Code" for short), for issuance of a Court Commission in respect of the suit property. The said application has been allowed by the impugned order dated 12.03.2012. Aggrieved thereby, the petitioners are before this Court.

Heard Ms. Kruti M. Shah, learned advocate for the petitioners and Mr. S.P. Majmudar, learned advocate for respondent No. 1.

On behalf of the petitioners, it is submitted by Ms. Shah that the impugned order has been passed without issuance of notice to the petitioners. As such, the said order is an exparte one.

It is next submitted that the dispute is regarding the title of the suit property and there is no dispute regarding the boundaries thereof, which would necessitate the issuance of a Court Commission. The effect of the impugned order would be to aid respondent No. 1 - plaintiff in collecting evidence against the petitioners.

Lastly, it is submitted that as the impugned order has been passed without affording the petitioners an opportunity of hearing and as it is in violation of the principles of natural justice, it may be quashed and set aside.

On the other hand, Mr. S.P. Majmudar, learned advocate for respondent No. 1, submits that the Trial Court has the power to issue a Commission under the provisions of Order 26 Rule 9 of the Code and such power can be exercised suo motu, therefore, there is no legal infirmity in the impugned order so as to warrant the interference of this Court.

This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

A perusal of the provisions of Order 26 Rule 9 of the Code would go to show that the Court is empowered to order a local investigation for the purpose of elucidating any matter in dispute. Such power can be exercised suo motu or on an application made by any of the parties to a suit. The present is not a case where the Court has exercised the power under Order 26 Rule 9 suo motu. The exercise of this power has been invoked by respondent No. 1 by filing the application at Ex. 6. It has been asserted by the learned advocate for the petitioners that no notice was issued to the petitioners before deciding the application at Ex. 6. The petitioners were deprived of the opportunity to raise objections and get an opportunity of hearing. Learned counsel for respondent No. 1 could not dispute this position. Thus, it is clear that the order has been passed without issuing notice to the petitioners or affording them an opportunity of hearing. As such, it can be said to be an exparte order as far as the petitioners are concerned, though for no default in appearance on their side.

The submissions advanced on behalf of the petitioners that the impugned order has been passed without issuance of notice to them or granting them an opportunity of hearing, have considerable weight.

Though the Trial Court is empowered to issue a Commission suo motu, in the present case, suo motu power has not been exercised. The impugned order has been passed at the behest of respondent No. 1, one of the parties to the litigation. Under such circumstances, when the Trial Court was deciding an application filed by one of the parties, it would have been more appropriate and conducive for the proper administration of justice if the petitioners/defendants would have been granted an opportunity of hearing and of ventilating their objections to the application. However, this course of action has not been adopted by the Trial Court, which has straightaway passed the impugned order without notice to the petitioners. What was the necessity of such a course of action is not discernible. However, it has resulted in deprivation of the right of hearing and raising objections to the application on the part of the petitioners.

As the impugned order has been passed without granting an opportunity of hearing to the petitioners, it is in violation of the principles of natural justice. As per the settled principles of law, such an order cannot be permitted to stand.

For the aforestated reasons, the petition is partly-allowed. The order dated 12.03.2013, passed by the learned 18th Additional Senior Civil Judge, Surat, below the application at Ex. 6, in Special Civil Suit No. 125 of 2012, is quashed and set aside.

The matter is remanded to the Trial Court to decide the application at Ex. 6 afresh, after issuance of notice to all concerned and taking into consideration the objections, if any, preferred by the parties. After granting a proper opportunity of hearing to the parties, the Trial Court shall decide the application at Ex. 6, in accordance with law and as expeditiously as possible, preferably within a period of three months from the date of the receipt of a copy of this order.

Rule is made absolute to the above extent.

It is clarified that this order has been passed solely on the ground of the violation of the principles of natural justice and this Court has not entered into the merits of the case. Direct Service is permitted.