Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18658 of 2012 ====================================================== 1. Pramod Vyas S/O Late Jagat Mohan Vyas Resident Of Mohalla Rajguru Chowk Bettiah, P.S. Bettiah Town, District West Champaran. .... .... Petitioner Versus 1. Ramadhar Dubey S/O Ekbali Dubey Resident Of Village Gonauli Tola Singha Chhapar, P.S. Bettiah, District West Champaran. 2. Subhas Dubey S/O Ekbali Dubey Resident Of Village Gonauli Tola Singha Chhapar, P.S. Bettiah, District West Champaran. 3. Bipin Dubey S/O Ekbali Dubey Resident Of Village Gonauli Tola Singha Chhapar, P.S. Bettiah, District West Champaran. 4. Vinod Dubey S/O Ekbali Dubey Resident Of Village Gonauli Tola Singha Chhapar, P.S. Bettiah, District West Champaran. 5. Dinesh Dubey @ Prabhakar Dwibedi S/O Ekbali Dubey Resident Of Village Gonauli Tola Singha Chhapar, P.S. Bettiah, District West Champaran. 6. Ganesh Dubey S/O Ekbali Dubey Resident Of Village Gonauli Tola Singha Chhapr, P.S. Bettiah, District West Champaran. 7. Sanchit Dubey S/O Ekbali Dubey Resident Of Village Gonauli Tola Singha Chhapr, P.S. Bettiah, District West Champaran. 8. Bhagmati Devi W/O Sri Ramprit Roy And D/O Ekbali Dubey Resident Of Village Pandey Tola, P.S. Chanpatiya, District West Champaran. 9. Sumati Devi W/O Sri Bindhyachal Pandey And D/O Ekbali Dubey Resident Of Village Mehadiya, P.S. Chanpatiya, District West Champaran. 10. Krishnawati Devi W/O Sri Surendra Pandey And D/O Ekbali Dubey Resident Of Village Baswariya, P.S. Motihari, District West Champaran. 11. Shanti Devi W/O Sri Bhuneshwar Roy And D/O Ekbali Dubey Resident Of Village Ginachhap, P.S. Chanpatiya, District West Champaran. 12. Kanti Devi W/O Sri Mantu Roy And D/O Ekbali Dubey Resident Of Village Sirisiya, P.S. Sirisiya, District West Champaran -Respondents 1st set 13. Imtiyaz Shekh S/O Abdul Rauf Resident Of Village Sansaraiya, P.S. Bettiah Mufassil, District West Champaran. 14. Rajeev Ranjan S/O Kedar Pandey Resident Of Village Mahui, P.S. Ramnagar, District West Champaran. 15. Neyaz Ahmad S/O Maruf Khan Resident Of Village Sansaraiya, P.S. Bettiah Mufassil, District West Champaran. 16. Arun Kumar S/O Late Ambika Roy Resident Of D.K. Shikarpur, P.S. Shikarpur, District West Champaran. 17. Sudhanshu Kumar Roy S/O Late Rajdeo Roy Resident Of Jay Prakash Nagar Bettiah, P.S. Bettiah, District West Champaran. 18. Shamshad Hussain S/O Late Safi Mian Resident Of Mohalla Mahwatpur Tola, P.S. Bettiah, District West Champaran. .... .... Respondents 2nd set ====================================================== Appearance : For the Petitioner : Mr. Sanjay Singh, advocate Mr. Ajay Kumar Singh, advocate For the Respondents : Patna High Court CWJC No.18658 of 2012 (3) dt.14-08-2013 2/7 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 3 14-08-2013 Heard Mr. Sanjay Singh, learned counsel for the petitioner. 2. The petitioner, in the present application under Article 227 of the Constitution of India, is aggrieved by an order dated 08.08.12 passed by learned Sub Judge-III, West Champaran at Bettiah in Title Suit No. 11/2011 whereby a petition dated
Legal Reasoning
30.07.2012 filed by respondents 1st set/ plaintiff has been allowed. By the said petition dated 30.07.2012 the respondents 1st set/ plaintiff sought for appointment of a Pleader Commissioner to ascertain and report the position of the suit property as regards existence of a thatched house and trees etc. over the suit property, surrounded by a barrier. 3. It appears from the pleadings in the present application that the plaintiff filed the said Title Suit No. 11/2011 seeking declaration of his right title and confirmation of possession over the suit land. He also sought for a decree of injunction restraining the petitioner/ defendant from interfering with his possession over the suit property. It further appears that the petitioner, after having received notice, appeared before the court below and filed his written statement. The respondents 1st set Patna High Court CWJC No.18658 of 2012 (3) dt.14-08-2013 3/7 filed a petition under Order 39 Rule 1(2) of the Code of Civil Procedure (‘in short the Code’) seeking interim injunction in his favour. The petitioner is said to have filed his show cause reply also to the petition under Order 39 Rule 1. The respondents 1st set filed a petition, in the meanwhile, on 30.7.2012 under Order 26 Rule 9 of the Code for appointment of a Pleader Commissioner to make on the spot inspection of the suit land and to submit the report. A rejoinder to this petition was filed objecting to the move for appointment of a Pleader Commissioner. Learned court below, however, by the impugned order dated 08.08.2012 allowed the petition holding that appointment of Pleader Commissioner, in the facts and circumstances of the case, would not prejudice the case of the petitioner. The court below also came to a finding that such on spot investigation by the Pleader Commissioner would not create evidence in favour of plaintiff as the petition for appointment of Pleader Commissioner was confined to ascertain the position/condition of the suit land.
Legal Reasoning
4. Mr. Sanjay Singh, learned counsel for the petitioner, has strenuously submitted that even before commencement of trial and during the pendency of the injunction petition, the court below ought not to have allowed the petition under Order 26 Rule 9 of the Code and appointed a Pleader Commissioner for on the spot Patna High Court CWJC No.18658 of 2012 (3) dt.14-08-2013 4/7 inspection. He submits that appointment of Pleader Commissioner, in the facts and circumstances of the case, is totally unwarranted as such appointment would amount to providing to the plaintiff an opportunity to collect evidence through Pleader Commissioner. He submits that a party is required to prove his case on the basis of evidence adduced by him and it cannot take help of the evidence collected in course of local inspection conducted by the Pleader Commissioner. He has placed reliance upon a judgement of Madras High Court reported in AIR 1953 Madras 717 (In re P. Mossa Kutty) and AIR 2000 Calcutta 91 (Vessel M. B. “Baltic Confidene” v. State Trading Corporation) to submit that object of local inspection is not to collect evidence which can be taken in court but to obtain evidence which from its very peculiar nature can only be had on the spot. 5. Before I deal with the submissions made by Mr. Singh, while assailing the impugned order, it would be apt to consider order 26 Rule 9 of the Code which reads thus:- to make “9. Commission 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 Court. Patna High Court CWJC No.18658 of 2012 (3) dt.14-08-2013 5/7 Provided that, where State Government has made rules as to the person to whom such commission shall be issued, the Court shall be bound by such rules.” the 6. From a bare reading of Order 26 Rule 9 of the Code, it would appear that:- (i) Primarily it is the discretion of the trial court to issue a commission for local investigation and, (ii) Such commission can be appointed at any stage for the purpose of ascertaining the facts enumerated in the provision for elucidating any matter in dispute. (iii) It does not provide the stage when a commission can be issued. 7. It has been submitted by Mr. Singh that the court below ordered for appointment of Pleader Commissioner at such stage when even issues were not framed and, therefore, it is improper. 8. This submission cannot be accepted as Order 26 Rule 9 of the Code does not bar appointment of Pleader Commissioner at such stage. This view is supported by the judgement reported in AIR 1953 Madras 717( In re P.Mossa Kutty) (supra), reliance upon which has been placed by Mr. Singh in support of his plea that the appointment of Pleader Commissioner, in the facts and Patna High Court CWJC No.18658 of 2012 (3) dt.14-08-2013 6/7 circumstances of the case, is bad as, according to him, it is being done to collect evidence. 9. The Madras High Court in case of In re P. Mossa Kutty (supra) has held that a commission could be issued even without issuance of notice to the defendants. Secondly, I am not in agreement with the submission that the impugned order for appointment of Pleader Commissioner has been passed in order to collect evidence in favour of the plaintiff. The petition for appointment of Pleader Commissioner under Order 26 Rule 9 of the Code was filed not for the purpose of ascertaining the possession of one or the other party over the suit property rather it was confined to ascertain the correct position of the suit property, particularly, with regard to existence of a thatched house and trees surrounded by a barrier. The result of the report of the Pleader Commissioner on such points, in my opinion, will not amount to creating evidence in favour of one party or against the other. 10. Mr. Singh has expressed serious apprehension that the Pleader Commissioner would submit a report which may indicate facts relating to possession of one party or the other over the suit property. 11. In my view, such apprehension has no foundation. There cannot be any dispute over the proposition of law as Patna High Court CWJC No.18658 of 2012 (3) dt.14-08-2013 7/7 advanced by Mr. Singh, while placing reliance upon judgement of Madras High court in the case of In re P. Mossa Kutty (supra) and in the case of Vessel M.V. Baltic (supra), that the court cannot appoint a Pleader Commissioner for the purpose of collecting evidence and this is a judicial function which cannot be delegated. However, in the present case the court below has ordered for appointment of a Pleader Commissioner for ascertaining the position of the suit land as would appear from the impugned order itself. 12. This is to be added that the report submitted by the Pleader Commissioner has to be tested by the trial court on the basis of evidence available before it and the petitioner shall have the opportunity and liberty to question the report of the Pleader Commissioner, if aggrieved at subsequent stage. 13. In the facts and circumstances of the case, the impugned order does not need interference by this court in exercise of power under Article 227 of the Constitution of India. This writ application is, accordingly, dismissed. (Chakradhari Sharan Singh, J) BKS/-