Kangali Khatei And Others vs Alekh Khatei And Others

K.R.Mohapatra, J

Petitioners, in this writ petition, seek to assail the order dated 28.09.2020 (Annexure-7) passed by learned Senior Civil Judge, 2nd Court, Cuttack in

I.A. No.01 of 2020 (arising out of C.S. No. 455 of 2020), whereby he allowed a petition under Order XXXIX Rule 7 C.P.C. filed by the defendants

(Opp. Parties herein), by appointing a Pleader Commissioner to visit and ascertain as to whether there exists a canal over the suit plots with certain

consequential directions.

In order to appreciate the contentions of learned counsel for the parties, relevant facts which are required for consideration, are stated hereunder:

1 Civil Suit No. 455 of 2020 has been filed by the plaintiffs-petitioners for a decree of permanent injunction in respect of suit land in Plot Nos. 2715,

2716, 2718, 2719, 2597, 2717 and 3438 restraining the defendants-opp. parties from digging a water channel thereon. The plaintiffs contended in the

plaint that they along with other co-sharers are the recorded tenants in respect of the suit land. Adjacent to the suit land, there exists a canal from

river Kandala. During heavy rain, the excess water passes through the canal as well as vacant land recorded in Government Khata. Thus, the

villagers never faced any water logging. Since the defendants tried to dig a canal (water channel) over the sthitiban plots of the plaintiffs (suit land) for

a free flow of rain water, the suit has been filed for the aforesaid relief. Along with the plaint, the plaintiffs-petitioners also filed an interim application

(I.A. No.1 of 2020) under order XXXIX Rules 1 and 2 of C.P.C. and vide order dated 24.08.2020, learned Civil Judge granted ex parte ad interim

injunction restraining the defendants from entering upon the suit land and digging water channel thereon. The defendants filed their objection to the

petition for injunction denying the contention made therein. They specifically took a stand that;

“Since more than 40 years there exists a canal for discharge of rain water. The said canal passes over Plot no. 2630, 2642, 2652, 2760, 2763, 2790, 2779,

1988 and ultimately the rain water discharge through plot no. 2717, 2718 and 2719 to the river. Any kind of blockage over these plots will cause water logging

over thousand acres of land.â€​

Thus, they prayed for vacation of the interim order of injunction. In course of hearing of the petition for injunction, the defendants filed a petition under

order XXXIX Rule 7 C.P.C. on 14.09.2020 for appointment of a Pleader Commissioner to inspect the spot and answer the following questions for just

adjudication of the petition for injunction;

“1. Is there any existence of canal since 40 years which passes through the suit land?

Whether the petitioners obstructed the canal thereby blockage the free flow of rain water to discharge to the river?

Whether the agricultural land of the suit village become over flooded?

Any other party to be answer by the Commissioner.â€​

2.2 Taking into consideration the rival contentions of the parties, learned Civil Judge passed the impugned order under Annexure-7. Assailing the

same, this CMP has been filed.

Mr. Mohanty, learned counsel for the petitioners submits that the petition filed for appointment of Pleader Commissioner does not satisfy the

requirements of Order XXXIX Rule 7 C.P.C.. The defendants-opposite parties have specifically stated in their objection to the I.A. No. 01 of 2020

that the canal passes over Plot Nos. 2630, 2642, 2652, 2760, 2763, 2790, 2779 and 1988. The same do not include the suit plots. Thus, the Question

No. 1 of the questionnaire attached to the petition under Order XXXIX Rule 7 C.P.C. is an irrelevant and misleading question. The defendants in that

process made an endeavour to procure evidence through the Pleader Commissioner, which is not their case. When the question No.1 is irrelevant the

rest of the questions, those are dependent upon the reply of the question No.1, are also equally irrelevant and misleading. Learned Civil Judge lost sight

of the aforesaid material aspect while adjudicating the petition under Order XXXIX Rule 7 C.P.C. It is his submission that the Question No.1 of the

questionnaire weighed in the mind of the court to pass the impugned order, which is clear from the observation made in the impugned order itself by

the trial court as follows:

“On the other hand, it is the contention of the defendants/O.Ps. that a canal exists over several plots, which ultimately passes through the suit land and the

excess water from the adjacent plots is being discharged through that canal. So, the main issue of contention between both the parties is whether there exists a

canal through to the suit plots of the plaintiffs since 40 years which is being used for discharge of excess rain water.â€​

3.1 It is his submission that there is no material on record to suggest that the defendants-Opp. Parties have made any endeavour to lead any evidence

in support of their case. Thus, it amounts to fishing out evidence through court, which is not permissible under law. In support of his contention, he also

relied upon the decisions in the cases of Bijay Kumar Jena and another â€"v- Dussasan @ Surendra Khuntia and others, reported inÂ

62 (1986) CLT 201, Golekha Chandra Sahoo â€"v- Choudhury Kedarnath Mishra, reported in 2013 (I) CJD (HC) 255 & Abdul

Naim Khan and another â€"v- Sk. Kefaittullah and others, reported in 2013 (I) CLR 606 and prays for setting aside the impugned order.

Mr. Mohapatra, learned counsel for the opposite parties, on the other hand, submits that the defendants-opposite parties in their objection to the

petition under Order XXXIX Rules 1 and 2 C.P.C. have specifically averred that the rain water after passing through the canal running over several

plots flows through the suit plot Nos. 2717, 2718 and 2719 to reach the river. Thus, a petition was filed to depute a Pleader Commissioner to see as to

whether there is a blockage over the aforesaid plots and hence, learned Civil Judge has committed no error in passing the impugned order. In fact,

they had filed the copy of the order passed under Section 133 Cr.P.C. along with their objection under Order XXXIX Rules 1 and 2 C.P.C., which

discloses the public nuisance created by the plaintiffs-petitioners by stacking materials for raising construction over the aforesaid three plots. Taking

into consideration the same, learned Civil Judge thought it proper to depute a Pleader Commissioner for spot visit and to submit a report with regard to

the obstruction made over the aforesaid three plots. In support of his case, he also relied upon the decision of this Court in the case of Paradip Port

Trust represented through its Secretary and another â€"v- Sankhanad Behera and others, reported in 2016 SCC Online Ori 753, in which it is

held:

“10. In the instant case, the learned trial court came to hold that the dispute pertains to existence of structure over the suit land possession over the suit land

by the plaintiffs and construction of dwelling house over the same. The local inspection of disputed land and its adjoining area will give a clear picture to the

Court for considering the application for temporary injunction which is pending.â€​

4.1 Mr. Mohapatra further submits that the aforesaid observation was made by this Court while considering the correctness of an order passed in an

application under Order XXXIX Rule 7 C.P.C. Thus, the ratio decided in the aforesaid case is squarely applicable to this case. Hence, he prays for

dismissal of the CMP.

Taking into consideration the submissions of learned counsel for the parties, this Court finds that the Question No.1 of the questionnaire is with

regard to the existence of canal over the suit plots. Admittedly, in the objection filed by the defendants-opposite parties to the petition under Order

XXXIX Rules 1 and 2 C.P.C., it has been categorically averred that the canal passes through seven plots which do not include the suit plots.

However, learned Senior Civil Judge keeping in mind the Question No.1 of the questionnaire proceeded to decide the petition for deputing a Pleader

Commissioner. Since it is the admitted case of the defendants-opposite parties that the canal does not run through the aforesaid three suit plots,

question No. 1 becomes redundant and irrelevant. However, it is also averred in the objection that the rain water flowing through the canal gets

discharged over the aforesaid three suit plots. This aspect requires consideration by learned Civil Judge.

5.1 The Court in its discretion may make an order for inspection of the property which is the subject matter of the suit. But, the discretion should not

be exercised on mere asking for the same. This Court in the case of Bijay Kumar Jena (supra) held as follows:-

“5. The object of inspection of the suit land is to find out its condition. Assistance of the Court would be necessary where the party requiring the assistance is

incapable of having the knowledge in view of the nature of the suit land. There may be situation where the party seeking the assistance of the Court is not allowed

to have the inspection himself or through his agents or where the evidence adduced by both sides is such that the Court feels that the report of local investigation

would help in assessing the evidence properly. The wide discretion under Order 39, Rule 7, C.P.C., is not to be exercised on the mere asking of the same.â€​

5.2 In the case of Abdul Naim Khan (supra), this Court held as follows:-

“6. Learned Trial Court disallowed such a prayer on the ground that those facts can be proved by leading evidence and therefore deputation of Commissioner

would amount to collection of evidence especially when hearing of the suit has not yet commenced. It is the trite law that the object of inspection is to give clear

topography and the situation of the suit plot. In my humble view, assistance of the Court would be necessary where the party requiring such assistance is

incapable of having the knowledge and cannot render evidence on the point. Furthermore, the Court has wide discretion in deputing advocate commissioner

when it finds that in view of the evidence laid by both sides the report of the local inspection would assist the Court in assessing the evidence properly. Thus,

when hearing of the suit has not yet commenced and when witnesses would be available to the plaintiffs to prove their assertions, the Trial Court is justified in

arriving at a conclusion that direction for local inspection would amount to fishing out materials for the plaintiff. I do not find anything wrong in the approach of

the learned Trial Court. When there is no failure of justice, in the instant case, by passing the impugned order in question and when there is nothing on record to

show that the learned Trial Court exceeded its jurisdiction and passed the impugned order in flagrant disregard of law or the rules of procedure or acting in

violation of the principles of natural justice, the Writ Court would refuse to exercise the certiorari jurisdiction as such powers are to be used sparingly.â€​

5.3 Further, in the case of Krushna Behera vs Gitarani Nandy, reported in 1990 (I) OLR 247 it is held as follows:-

“6. Under Order 39, Rule 7, Code of Civil Procedure, Court has discretion to make an order for inspection of the property in dispute. There can be no doubt

that such discretion is to be judicially exercised and it would depend on the facts and circumstances of each case to consider whether such discretion is to be in

favour of local inspection. It is to be remembered that such power is not to be exercised lightly on mere asking for the same. It is to be exercised by the Court when

occasion so demands and when such inspection is necessary for proper appreciation and adjudication of the dispute for which local inspection is sought for.â€​

5.4 In Sankhanad Behera (supra) this Court held as follows:-

 “9. The object of Order 39 Rule 7 is to find out the actual position and conditions of the property, which is the subject matter of dispute or as to which any

question likely to arise in the suit. The assistance of the Court may be necessary where the parties having incapable of adequate knowledge in view of nature of

property. The power conferred on the Court is discretionary in nature.â€​

Thus, the fundamental principles, amongst other, to be kept in mind while exercising discretion under Order XXXIX Rule 7 C.P.C. are.â€

i) The discretion under the rule must be exercised sparingly and in exceptional circumstances and not in a routine manner on mere asking for it;

ii) The party seeking assistance of the Court under the provision must establish that he is incapable of having the knowledge of the subject matter of dispute in

view of the nature of the suit property or is prevented from it without any sufficient cause, and

iii) The discretion is required to be exercised for just adjudication in the facts and circumstances of the case.

From the discussions made above, it appears that learned Civil Judge has not at all kept the aforesaid fundamental principles in mind while

considering the petition under Order XXXIX Rule 7 C.P.C.

Mr. Mohapatra, however, relied upon the case of Municipal Corporation of Delhi vs. Sh. Jai Singh and others, reported in

2010 AIR SCW 5968 in which it is held as under:-

 “Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by

the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate

courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and

the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or

judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and

jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and

caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of

jurisdiction must be within the well recognized constraints. It cannot be exercised like a „bull in a china shop‟, to correct all errors of judgment of a court, or

tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of

duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the

evidence. Generally, it cannot substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power

to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The

exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.â€​

(emphasis laid)

8.1 He, therefore, submits that the impugned order should not be interfered with in exercise of the power of superintendence under Article 227 of the

Constitution of India as there is neither any grave dereliction of duty nor any flagrant abuse of fundamental principles. But, in view of the discussions

made above, this Court is of the considered opinion that learned Senior Civil Judge, 2nd Court, Cuttack was required to follow the fundamental

principles enumerated above, while passing the impugned order, which is conspicuously absent in this case. Hence, the matter requires further

consideration.

Accordingly, the impugned order dated 28.09.2020 (Annexure-7) is set aside and the matter is remitted back to the learned Senior Civil Judge, 2nd

Court, Cuttack for consideration of the petition under Order XXXIX Rule 7 C.P.C. afresh giving opportunity of hearing to the parties concerned and

keeping in mind the discussions made above.

Mr. Mohapatra, learned counsel for the opposite parties submits that in the meantime, the Advocate Commissioner has visited the spot and is yet

to submit his report pursuant to the impugned order. Hence, it is directed that report, if any, submitted by the Advocate Commissioner in the meantime

shall be kept in abeyance till the petition under Order XXXIX Rule 7 C.P.C. is decided afresh, preferably within a period of eight weeks hence.

With the aforesaid observation and direction, the CMP is disposed of.

Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in

this Court’s Notice No.4587 dated 25.03.2020.