Union of India (UOI) and Another vs Kripal Industries

Shiv Kumar Sharma, J.—Instant revision impugns the order dated January 17, 1998 of the learned Civil Judge (Junior Division) Raisinghnagar, whereby the application under Order 26, Rule 9, C.P.C., moved by the plaintiff-non-petitioner (for short the plaintiff) was allowed and Commissioner was appointed for making enquiry about the fact of possession of the plot in dispute.

Brief re''sume'' of the facts is that the plaintiff instituted a suit for injunction against the defendant-petitioners (for short the defendants) in the trial Court, seeking relief that the defendants be restrained from transferring plot No. 14 situated in Industrial Area, Raisinghnagar, in their names either by way of lease or by way of a sale deed. It was also prayed that the defendants be restrained from dispossessing the plaintiff from the said plot. Along with the plaint, an application seeking temporary injunction was also filed by the plain-tiff. Learned trial Court allowed the application and restrained the defendants from interfering with the possession of the plaintiff and encroaching upon the suit plot. The Additional District Judge, however, allowed the appeal of the defendants preferred under Order 43, Rule 1, C.P.C. and reversed the finding of the trial Court with a direction that original suit be decided within six months. The plaintiff thereafter submitted an application under Order 26, Rule 9, C.P.C. before the trial Court for appointing Commissioner to ascertain as to who was in possession of the suit plot on the relevant date. The application was allowed by the trial Court vide order under challenge.

Mr. J. P. Joshi, learned counsel for the defendants urged that Commissioner cannot be appointed with an object to create evidence in favour of one of the litigant parties. The question of possession has to be proved by cogent evidence and it cannot be determined on the basis of the inspection report of the Commissioner. Reliance was placed on Basanta Kumar Swain Vs. Baidya Kumar Parida and Others,

Mr. R. R. Nagori, learned counsel appearing for the plaintiff on the other hand supported the impugned order of the trial Court. Learned counsel attracted my attention towards the provisions contained in Rule 9 and Rule 10 of Order 26, C.P.C. It was contended that the trial Court is vested with discretionary powers under the said provisions to appoint the Commissioner for elucidating any point in dispute. Reliance was placed on Mukhtiar Singh v. Tej Kaur (1978) I Rent LR 294 (P&H) Mahendranath Parida Vs. Purnananda Parida and Others, John Vs. Kamarunnissa, and Sanku Ranga Rao Vs. Devi Prasad Sahu and Another,

I have given my thoughtful consideration to the rival submissions and carefully perused the impugned order.

At this juncture it will be useful to examine the relevant statutory provisions.

Order 26, Rule 9, C.P.C. provides thus-

"9. Commissions to make local investigations.-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court :

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

Order 26, Rule 10, C.P.C., reads as under-

" 10. Procedure of Commissioner.-- (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him; shall return such evidence, together with his report in writing signed by him, to the Court.

(2) Report and depositions to be evidence in suit.-- The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court, or with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

(3) Commissioner may be examined in person.-- Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."

The High Court of Judicature for Rajasthan in exercise of powers conferred upon it by Article 227 of the Constitution of India and all other powers enabling it in that behalf and with the approval of Governor of Rajasthan, has made the General Rules (Civil) 1986 which came into force from the date of their publication in the Rajasthan Gazette i.e. from December 25, 1986. Rule 67 of the said rules provides thus-

"67.-- Particulars to be given in the order for local investigation.-- When issuing a Commission for making local investigation under Order 26, Rule 9 the Court shall define the points on which the Commissioner has to report. No point which can conveniently and ought to be substantiated by the parties by evidence at the trial shall be referred to the Commissioner."

I have been taken through the certified copy of the application for the plaintiff moved under Order 26, Rule 9, C.P.C. Beginning lines of the said appellants are as under-

^^fuosnu gS fd mijksDr muoku ds okn es fookfnr vkS|ksfxd IykV la[;k 14 ij dCtk oknh dk gh pyk vk jgk gS A bl ckjs esa izfroknh }kjk vius tokc nkok esa viuk dCtk gksuk nk''kkZ;k x;k gS A izfroknhx.k dk dFku lR; ugha gS rFkk bl nkok esa fookfnr IykV dk dCtk dk fcUnq Hkh egRoiw.kZ gS A dCts ds fcUnq ds vk/kkj ls gh nkok dk lgh fuiVkjk djus esa U;k;ky; dks lgk;rk feysxh blfy, okLrfod dCtk ds lEcU/k rF;kRed fjiksVZ ds fy;s losZ dfe''uj fu;qDr fd;k tkuk U;k;ksfpr gS A mlh fjiksVZ ls U;k;ky; dks lgh fu.kZ; djus esa enn feysxh A**

A cursory look at the contents of the application demonstrates that the defendants have already filed written statement claiming their possession over the suit land whereas the case of the plaintiff is that he is in the possession of the said land. The disputed question of fact can be decided obviously by recording evidence.

The point which requires determination in the instanl revision is as to whether a Commissioner should be appointed to decide a disputed question of fact?

Sanku Ranga Rao Vs. Devi Prasad Sahu and Another, was a case where it was observed that-

"Since the private Commissioner had once filed an affidavit contrary to his previous report appointing a Private Commissioner again would serve little purpose. Hence appointment of Court Commissioner was necessary."

Basanta Kumar Swain Vs. Baidya Kumar Parida and Others, was a case where it was indicated that (Para 4)-

"The object of Order 26, Rule 9, C.P.C. is not to assist a party to collect evidence where it can get the evidence itself. The object is for elucidating any matter in dispute by local investigation at the spot. Where on the evidence of experts on record. the Court is satisfied that for appreciating the opinion of the expert evidence, it should appoint an expert as Commissioner, it can on the facts and circumstances of the case, appoint a Commissioner. Where the Court is satisfied on the materials available on record that a party is not able to produce the desired evidence for reasonable circumstances, the Court may assist the party to appoint a Commissioner to get the evidence. However, such evidence is not binding on the Court which is to appreciate the same along with other evidence."

In John Vs. Kamarunnissa, it was held that-

"Where local inspection under Order 26, Rule 9, Civil P. C. is requisite and proper for elucidating matters in dispute in the suit, the same cannot be denied on the ground that the defendant has not yet filed his written statement. The said provision places no such bar on the Court exercising the power."

In Mahendranath Parida Vs. Purnananda Parida and Others, it was laid down that (Para 4)-

"Therefore, where the Court considers a local investigation to be requisite and proper, ordinarily it should not decline to exercise jurisdiction. It may decline jurisdiction if the motion is made at a belated stage, or if the motion is mala fide or in circumstances justifying refusal."

In Mukhtiar Singh v. Tej Kaur (1978) ILR 294 (P & H), it was propounded that-

"From a bare reading of the rule, it is evident that a Court can appoint a Commission for elucidating any point in dispute. In the present case, there is a dispute regarding the possession of the house in dispute. The Court dismissed the application on the ground that the power to investigate regarding the possession of the house could not be delegated. The view taken by the learned trial Court appears to be erroneous on the face of it. Such a power could always be given to a Commission. In my view, the Court has acted in exercise of its jurisdiction illegally and the order is liable to be set aside."

A perusal of the provisions contained in Rules 9 and 10 and Order 26 goes to show that the trial Court is vested with the discretion to appoint Commissioner but such discretion should not be exercised where the point which is required to be referred to the Commissioner can conveniently be substantiated by the parties by evidence at the trial. Rule 67 of the General Rules (Civil) 1986, explains the scope of Order 26, Rule 9, C.P.C. In Orissa, Punjab and Haryana and Kerala there is no such rule and the ratio of case law cited by Mr. Nagori, learned counsel for the plaintiff, is not applicable in the case on hand. I am unable to persuade myself to agree with the submission of Mr. Nagori, the learned counsel, that Rule 67 is ultra vires.

Subscribing the view of Orissa High Court in Basanta Kumar Swain Vs. Baidya Kumar Parida and Others, I hold that power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist party to collect evidence where it can get evidence itself. In the case on hand the written statement has already been filed, therefore, the disputed question of fact can be adjudicated upon by the Court after framing the issues and recording the evidence of the parties. For such purpose assistance of Commissioner is neither necessary nor justified.

The impugned order thus suffers from jurisdictional error and if it is allowed to stand it would occasion failure of justice.

Resultantly, the revision succeeds and is hereby allowed. The impugned order stands set aside. No costs.