Writ Petition No.4974 of 2008

7th October, 2008

Petitioner Counsel: Shri. V. D. SALUNKE
Respondent Counsel: Shri. V. D. SAPKAL,Shri. D. R. KORDE

Cases Cited:
M/s. Filmistan Private Ltd. Vs. M/s. Bhagwandas Santprakash, AIR 1971 SC 61 [Para 12]
Arredla Ram Reddy Vs. Arredla Alivelamma, 2004(5) ALD 388 [Para 14]
Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare, 2001(1) ALL MR 653=2001(1) Bom.C.R. 800 [Para 14]

JUDGMENT

JUDGMENT :- Heard Shri. Salunke, learned Advocate for the petitioner. He seeks leave to delete respondent Nos.2 and 3 from this writ petition, since contesting respondent No.1 is appearing on caveat.

Leave granted. Deletion to be carried out forthwith.

Heard Shri. Sapkal, learned Advocate for respondent No.1.

2. Rule. By consent, Rule made returnable forthwith and heard finally.

3. The factual matrix, relevant at this stage, can be summarised as follows :-

Petitioner is plaintiff in RCS No.182 of 2007 filed in the court of learned Civil Judge (Senior Division), Ambajogai, District Beed. Copy of the plaint is not available with any of the counsel appearing for parties in this petition.

Shri. Salunke, learned Advocate submits that the suit filed is for declaration and perpetual injunction. This position has not been disputed by Shri. Sapkal, learned Advocate for respondent No.1.

4. The suit was followed by an application Exhibit 5, seeking temporary injunction against defendants. Said application was heard and finally allowed by the trial court on 31.12.2007. Defendants 1 to 3 were temporarily restrained from interfering and obstructing into the peaceful possession of plaintiff over the suit property, i.e. Plot No.2, situated at Ambika Society, till decision of the suit.

5. Said order was challenged by defendants by filing Misc. Civil Appeal No.4 of 2008, under Order 43 of the Code of Civil Procedure ("CPC"). Said appeal is pending in the court of learned Ad-hoc District Judge-I, Ambajogai, District Beed. Said appellate Court initially exercised the powers under section 151 of CPC and appointed a Court Commissioner. This order was challenged by plaintiff before this Court by filing Writ Petition No.488 of 2008, which is disposed of by this Court. Copy of the order is annexed at Exhibit "C" to this petition. The order impugned in the writ petition dated 11.1.2008, was quashed and set aside. The matter was remanded back. It was further observed that the first appellate court may consider the said issue afresh and then deal with the same, according to law, by passing a reasoned order.

Thereafter, it is not in dispute that respondent No. 1 filed an application under Order 26, Rule 9 of CPC on 10.6.2008. This application is at Exhibit 25 in Misc. Civil Appeal No.4 of 2008. Said application, after hearing the parties came to be allowed by the first appellate court on 6.8.2008. This order is subject matter of the present petition.

6. Appointment of the Commissioner by the Civil Court is the matter of great concern in the trial of the suit. This court comes across many such orders in various writ petitions. From this view point, I have heard larned counsel for the parties at length.

7. Civil Procedural Law is a separate, distinct branch of law which exercises a pervasive influence over all other branches of law, except criminal law and procedure. This branch comprehends the entire body of civil law, including the practice and procedure of the courts which regulates the machinery and governs the administration of civil justice. It extends to every legal or equitable claim, right, relief of remedy properly brought before any court or tribunal, either inferior or superior, at first instance or on appeal. This branch of law may be regarded as comprising of three parts. They may be viewed as self contained compartments but as interrelated with and over lapping and interacting upon each other. First one is the institutional part, second one professional part and third one is the procedural part. This branch of law forms an indispensable part of the machinery of justice and operates as essential tool for enforcing legal rights and claims, for redressing or preventing the legal wrongs, for ascertaining legal defences and for such other ancillary purposes. In substance, civil procedural law is a necessary legal and social instrument for attainment of "Justice between the man and man".

The first uniform Civil Procedure Code was enacted for British India in 1859. It was not applicable to the Supreme Courts in the Presidential town and Presidential Small Causes Courts. Act V of 1908 i.e. CPC-1908 was enacted with effect from 31.3.1908 (Code of 1908). This Code of 1908 is divided into two parts. First the body of the Code containing 158 sections. Second part is First Schedule, containing LI Orders with Rules. Then there are Appendix A to H also. The sections deal with the provisions of substantive nature, laying down general principles of jurisdiction. "First Schedule" on the other hand relates to procedure, method, manner and mode in which the jurisdiction may be exercised. The body of the Code of 1908 (Sections) is fundamental and can be amended or modified only by a competent legislation. "First Schedule" prescribes procedure and can be amended or altered by the High Courts. But once the Rules are amended they become part of the Code for all purposes as if enacted in the Code. The substantive provisions of the Code are fundamental and hence very important but importance of the procedural provisions can not be under estimated. Therefore, both must be read in harmony so as to subserve and advance cause of justice. Part I i.e. Sections 9 to 35-B of the Code of 1908 reveal the procedure from the time plaintiff takes a decision to file the suit, select his forum, time, having obtained a decree proceeds to execute it. Most of the important stages of the trial are left to be dealt with by Rules and the Orders contained in the First Schedule. It is well settled principles of interpretation that all the provisions of the Code should be interpreted harmoniously, but if the Rules are inconsistent with the sections, the former will have to give way to the latter.

8. Appointment of Commissioner in terms of part III i.e. "Incidental proceedings" of CPC is a matter provided by section 75 of the Code. Since we are concerned with the appointment of Commissioner section 75 being the provision relevant, empowering the court, it would be apposite to refer the provisions.

"75. Power of court to issue commissions.- Subject to such conditions and limitations as may be prescribed, the court may issue a commission -

(a) to examine any person;

(b) to make a local investigation;

(c) to examine or adjust accounts; or

(d) to make a partition;

(e) to hold a scientific, technical, or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;

(g) to perform any ministerial act."

9. Part III of the Code of 1908 stands titled as "Incidental Proceedings". Sub-title is "Commissions". This part of the Code of 1908 starts with section 75, which is reproduced in the foregoing paragraph. Section 75(b) provides that subject to such conditions and limitations as may be prescribed the Court may issue commission to make a local investigation. With this, section 75 it would be appropriate now to refer Order 26, Rule 9 of CPC. Order 26 refers to "Commissions". Sub-title of this order makes a reference to "Commissions to examine the witnesses". Rule 9 of Order 26 provides "Commissioner for local investigation." It is provided under Order 26, Rule 9 of CPC that 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.

10. Apart from these two provisions learned counsel Shri. Sapkal has invited my attention to Order 39, Rule 7(C) of CPC. Temporary injunction and inter locutory order is the subject matter of said order. Order 39, Rule 7 comes in the sub-title "Inter-locutory orders." Order 39, Rule 7 provides that the Court may, on the application of any party to the suit and on such terms as it thinks fit, make an order for the detention, preservation or inspection of any property, which is the subject matter of such suit or as to which any question may arise therein. Order 39, Rule 7(b) further arms the Court with power for all or any of the purposes aforesaid any person to enter upon or into any land or building in the possession of any other party to such suit. Order 39, Rule 7(C) provides that the Court may, for all or any of the purposes aforesaid authorise any samples to be taken or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence exercise such power. At this stage, provision laid down under Order 39, Rule (6) also needs to be considered. In substance power to order interim sale is given to the Court of any movable property, being the subject matter of such suit.

Order 39, Rule 8 is more important. This Order 39, Rule 8 provides that an application by the plaintiff, for an order under Rule 6 (Power to order interim sale) may be made at any time after institution of the suit. Thus Order 39, Rule 8(1) has obligated the plaintiff to make such an application for interim sale at any time after institution of the suit. The Court may under Order 39, Rule 6 pass an order to interim sale after such an application being made by the plaintiff. Such liberty is also granted in favour of defendant i.e. to make an application under Order 39, Rule 6 seeking interim sale at any time after appearance. In that contingency the Court may exercise such power of interim sale of movable property which is subject matter of such suit, under Order 39, Rule 6 read with Rule 8(2) of CPC. Order 39, Rule 8(3) in fact, controls the provision laid down under Order 39, Rule 6 (Power to order interim sale) and Rule 7 i.e. detention, preservation, inspection etc. of the subject matter of the suit. Order 39, Rule 8(3) makes it mandatory upon the Court, that before making an order under Order 39, Rule 6 or Rule 7 on an application made for the purpose, the Court shall examine whether the object of making such order would be defeated by the delay and direct notice thereof to be given to the opposite party. Thus Order 39, Rule 8(3) makes it mandatory to the Court seized with the matter to give an opportunity of being heard to the adversary of an application filed either under Order 39, Rule (6) or (7). It is pertinent to note that Order 39, Rule 8(3) does not render the court powerless and makes it possible for the court to exercise power under Order 39, Rule 6 or 7 where it appears to the Court that object of such order under Order 39, Rule 6 or 7 would be defeated by delay. The power vested with the Court under Order 39, Rules 6 and 7 is a drastic power. The court seized with the matter has to be conscious while resorting to such jurisdiction. In the case on hand, the learned Judge seems to have passed an order casually under Order 39, Rule 7 of CPC.

I have also given thoughtful consideration to the submission of Shri. Sapkal, learned Advocate that the facts obtaining in the case on hand can be considered under Order 39, Rule 7(c). The emphasis given by Shri. Sapkal, learned Advocate that the purpose of this clause is of obtaining full information or evidence and therefore, the order passed by the lower court is legal and proper. Order 39, Rule 7(c) operates in different sphere altogether. It is not possible to accede to submission of learned counsel Shri. Sapkal. I have carefully considered the facts and provisions under Order 39, Rule 7(a) of the CPC. In my view, this provision also does not help the defendants.

Looking from any angle to the order impugned, in my view, this order cannot be said to be fit within the parameters of Order 39, Rule 7 of CPC. This order needs to be quashed and set aside.

11. Commission may be issued by the Court under section 75(b) to make a local investigation. The word "investigation" is not a legal expression. The word "investigate" means to "Examine, inquire into, study carefully; make official inquiry into" (The Consice Oxford Dictionary - Sixth Edn. - 1976). Section 75 has also employed the word "Court may", which indicates that it is a discretion vested with the court seized with the matter. The discretion vested with the Court, however, has to be exercised in judicious manner. Section 75(b) empowers the Court to issue a Commission to make a local investigation. Order 26, Rule 9 provides that if the Court deems a local investigation to be requisite or proper for the purposes of elucidating any matter in dispute or of ascertaining the market value of any property the Court may appoint a Commissioner. Thus, purpose of issuance of commission under section 75, in a given case, if local investigation is required, can be achieved by issuance of such commission. This local investigation, contemplated under section 75 has to be considered with reference to Order 26, Rule 9 of CPC. The phraseology of Order 26, Rule 9 maintains the earlier word "local investigation" and further provides that if it is requisite or proper for the purpose of elucidating any matter in dispute, Commissioner may be appointed. To "elucidate" again is not legal term and dictionary meaning is "to explain". Elucidation thus, can be considered to be "explanation". Thus, the "local investigation" in a suit, if requires some explanation, the court may exercise the powers under Order 26, Rule 9 of CPC. However, object of local inspection/investigation is not so much to collect the evidence which can be taken in Court but to obtain the evidence which due to its peculiar nature, can only be led at the spot.

Coming back to the issue involved in the case, in view of the provision laid down under section 75, request on behalf of the parties to the suit has to be considered by the Court seized with the case. Section 75 of the Code has to be read along with Order 26, Rule 9 harmoniously. Contingencies covered by section 75(a) to (g) have to be exhausted and or routed through a meticulous procedure of Order 26, Rule 9 of CPC.

12. In the case on hand, in my view, section 75 has to be read for issuing a Commission harmoniously with Order 26, Rule 9, CPC. In the foregoing paragraphs, I have observed that it is a matter of discretion for issuance of commission under Section 75 of the Code. I am fortified by the judgment of the Supreme Court in the matter of M/s. Filmistan Private Ltd. Vs. M/s. Bhagwandas Santprakash [AIR 1971 SC 61], in which the Supreme Court has considered provisions of sections 75 and 77 of CPC.

13. Turning to the case on hand and factual matrix and/or text of the application filed by defendants, it is not disputed by Shri. Sapkal, learned Advocate for respondent No.1 that the application bears the provisions laid down under Order 26, Rule 9 of CPC. The mofussil pleadings have to be consider liberally. Sections or provisions quoted by the party in the application cannot control the application filed by the party. The Court seized with the matter may consider the substance stated by the party in the application. In the case on hand, application Exhibit 25 in Misc. Civil appeal is annexed with the petition at Exhibit "D". Though provision laid down under Order 26, Rule 9 of CPC is mentioned in this application, I have considered the application from the view point of substance pleaded by the appellants (defendants) in the application. Few lines in the application are important and they read (verbatim) thus; "That, in the above matter, the appellants are claiming that suit house and premises being used by him and his family members as a house and they are residing in the same. On the contrary the respondent No.1 who is Vice Chairman of Vij Kamagar Sah. Pathsanstha is claiming the suit house being used by the society as office of the Vij Kamgar Society". It is further averred; "That, this is issue involved in this matter therefore to elucidate the factual position it is just and necessary to appoint Commissioner in this matter to find out the factual position. It is necessary to direct commissioner to visit the suit house and to give report in what manner the disputed house is being used either of the party". This averments are nearer to the provisions laid down under Order 26, Rule 9 of CPC. These averments, however, cannot be said to be in consonance with the provisions laid down under Order 39, Rule 7 of CPC. Assuming the submissions of learned counsel Shri. Sapkal, that this application has been considered by the trial court within the parameters of Order 39, Rule 7 of CPC, still it is not possible to accede to the submissions advanced on behalf of the respondent/defendant.

For the reasons stated in the foregoing paragraphs, the order passed by the learned Judge cannot be upheld for one more reason that if at all the learned Judge was of the opinion that the application filed by the defendants was under Order 39, Rule 7 he could have put the plaintiff on notice that application Exhibit 25 filed by defendants, though mentions that defendants' application is under Order 26, Rule 9 of CPC, it should be treated as an application under Order 39, Rule 7 of CPC and plaintiff should have been afforded an opportunity of filing reply to the said application to be under Order 39, Rule 7 of CPC. Such an opportunity was not given to the plaintiff. Neither the plaintiff was put on notice that application Exhibit 25 of defendants is in fact an application filed under Order 39, Rule 7 of CPC nor he was heard from the view point of Order 39, Rule 7. After hearing the parties and while passing the order, it was not appropriate for the lower Court to consider and treat application Exhibit 25, which details as an application under Order 26, Rule 9 of CPC to be the application under Order 36, Rule 7 of CPC and exercise the jurisdiction accordingly.

14. Shri. Salunke, learned Advocate for the petitioner has relied upon two judicial pronouncements. First is in the matter of Arredla Ram Reddy Vs. Arredla Alivelamma [2004(5) ALD 388]. The learned Single Bench of the Andhra Pradesh High Court has considered the provisions laid down in Order 26, Rule 9 of CPC. It was a Civil Revision Petition No.266 of 2004. Second judgment is in the case of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare [2001(1) Bom.C.R. 800 : (2001(1) ALL MR 653)], in which the learned Single Bench of this Court, in paragraph No.2 has observed that the trial Court therein had appointed Court Commissioner empowering to visit and inspect the suit plot and submit report regarding actual possession of the suit plot. This order passed by the trial court was set aside by the learned Single Bench. It was Civil Revision Application under section 115 of CPC. The provisions laid down under Order 39, Rule 7 as well as section 75 of the CPC were not considered by the learned Single Bench of this court.

15. Shri. Sapkal, learned Advocate has also invited my attention to report of the Commissioner, page 68 of the paper book. It appears that after appointment of the Commissioner by the lower Court, commission work has been executed and report is placed on record.

16. I have examined the judgment of the first appellate court. I have also considered judgment of the learned Single Bench of this Court in Writ Petition No.488 of 2008, dated 22.4.2008.

17. I have considered, the application filed by defendants, from the view point of Order 26, Rule 9 of CPC. I have also consider the reply filed by petitioner before the lower court i.e. Exhibit 27/D (Page 48 of the paper book). The application for appointment of Commissioner Exhibit 25, filed by defendants, could not have been allowed by the lower court. In my view, issue or the material fact, which has been stated by defendants in application Exhibit 25 cannot be said to be a matter, which requires explanation and/or inspection by the person appointed by the Court as Commissioner. Issue, therefore, requires to be substantiated by the parties i.e. plaintiff as well as defendants. The premises, how it being used, cannot be said to be a matter for elucidation or inspection by the Court Commissioner. The parties concerned are at liberty to adduce appropriate evidence to substantiate their contentions according to law. In other words, it is a matter of evidence, for which, aid of the civil court under the pretext of appointment of Court Commissioner cannot be resorted to. In my view, the order passed by the first appellate court that too during pendency of the Misc. Civil Appeal, cannot be said to be sustainable in law. This order needs to be quashed and set aside.

18. The report of the Commissioner is already placed on record as pointed out by Shri. Sapkal, Advocate for respondent No.1. The report of the Commissioner has been taken care of, by Order 26 itself. The report submitted by Commissioner, appointed by the civil court, cannot be read in evidence, the moment it is placed on record. Such report and its probative value has to be established and appreciated according to procedure and provisions of law. Reference can be made to Order 26, Rule 10(2) of CPC. It is provided that 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. In substance, unless requirement of Order 26, Rule 10(2) has been gone into, such a report filed by the Commissioner, cannot be read in evidence by any Court. Thus, the circumstance that the Commissioner appointed by the lower appellate Court has executed the task and placed on record his report, is not an impediment in the way of this Court while examining the legality of the order of appointment of the Commissioner and setting it aside.

19. In this view of the matter, in my judgment, the order passed by the lower appellate court requires to be quashed and set aside. While parting with this order, it is to be noted that temporary injunction applications have to be considered and by the Court at the first instance under Order 39, Rules 1 and 2 of CPC. Order 39, Rule 3-A of CPC puts limitation of such exercise i.e. thirty days. While considering the Misc. Civil Appeal, the appellate court shall have regard to the legislative intent that such interlocutory matters have to be decided expeditiously though there is no such limitation imposed upon the lower Appellate Court by the Code. In the case on hand, Misc. Civil Appeal No.4 of 2008 is still pending before the first appellate court.

20. Writ Petition is therefore, allowed. Impugned order is quashed and set aside with further direction to the lower appellate court to decide and dispose of the Misc. Civil Appeal No.4 of 2008 expeditiously and after affording opportunity of being heard to the parties concerned.

21. Rule made absolute in above terms with no order as to costs.

Petition allowed.