Jammu & Kashmir High Court - Srinagar Bench
Abdul Rashid Wadera vs Gh. Hassan Khan on 10 October, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Page 1 of 9
Sr. No. 24
Suppl. List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CSA 16/2017
ABDUL RASHID WADERA ...Petitioner(s)/appellant(s)
Through: Mr. Nissar Ahmad, Adv.
Vs.
GH. HASSAN KHAN ...Respondent(s)
Through: Mr. Abdul Ahad Rather, Adv.
Mr. Moomin Khan, Adv.
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
10.10.2024 Oral:
1. The instant Civil Second Appeal has been filed by the appellant herein against Judgment and Decree dated 26.11.2015, passed by the Court of 3rd Additional District Judge Srinagar, (for short the appellate Court) in case titled as "Hassan Lal Khan vs Abdul Rashid Wadera & Ors."
2. The facts emerging from the record giving rise to the filing of the instant appeal are that the plaintiff-appellant herein filed a suit before the Court of Municipal Magistrate, Srinagar for permanent injunction against the Municipal Authorities including the respondent herein seeking therein a decree for mandatory/prohibitory injunction for directing the official defendants to demolish the structure constructed by the defendant 1-
respondent 1 herein, while alleging that the said structure obstructs the light and air of his house, while further seeking a decree of perpetual injunction that the defendant 1-respondnet 1 herein, be restrained from raising any further construction having contended therein the suit he the plaintiff- CSA 16/2017 Page 2 of 9 appellant herein is the owner of a house situated at Kursoo Rajbagh Srinagar bounded in the east by a general road, in the west by the house of one-Ashiq Hussain, in the North by the house of defendant 1/respondent 1 herein and in the South by the house of one Haidi Nath and though the said house of the plaintiff/appellant herein and that of the defendant 1- respondent 1 herein are adjacent to each other separated by a common fencing wall, yet the defendant 1-respondent 1 herein started raising construction on the said common wall, that too adjacent to the house of the plaintiff-appellant herein and completed the construction of one storey thereon and proceeded with the construction of second storey thereon without leaving mandatory fire gap/space required under Municipal Laws and affected the light and air of the house of the plaintiff-appellant herein, besides the easementary rights having been enjoyed by him uninterruptedly for the last 20 years. The suit came to be subsequently amended by the plaintiff/appellant herein after the plaintiff-appellant herein had come to know that a permission for raising construction stands granted to the defendant 1-respondent 1 herein which permission had however got elapsed by the efflux of time and the construction raised by the defendant 1-respondent 1 herein even has not been raised in conformity with the said permission. The defendant 1-respondent 1 herein filed written statement to the amended suit and opposed the suit filed by the plaintiff-appellant herein stating, inter alia, therein that the construction raised in question is not adjacent to the house of the plaintiff/appellant herein, but about 25 feet away from the house of the plaintiff/ appellant herein and that a permission also stands obtained by him from Srinagar Municipality, and that, in fact, he i.e., the defendant 1-respondent 1 herein have had decades back CSA 16/2017 Page 3 of 9 constructed a plinth over his own proprietary land having fenced the same in the year 2001-2002 and had also applied for a building permission for raising construction over the said existing plinth to the Municipality and that since area for maintaining prescribed set back was not available for raising construction over the said plinth from the side of the residential house of the plaintiff-appellant herein, as such, he the defendant 1- respondent 1 approached the plaintiff-appellant herein for seeking his no objection for raising the construction without maintaining the prescribed set back and a written no objection came to be provided by the plaintiff- appellant herein to him on 06.11.2001, which 'no objection certificate' was also attested by the official Respondent 5 herein on 17.11.2005 whereafter, he started raising the construction, however the plaintiff-appellant herein despite granting the said 'no objection certificate' filed a suit on 03.07.2002 against him qua the construction in question which suit, however, came to be dismissed for non-prosecution on 23.03.2003, and that, in the meantime he raised the construction of the ground floor up to the lentil level, however, under the pressure of the plaintiff-appellant herein, the official respondents herein issued a demolition order against him under Section 7 of the Control of Building Operations Act 1988, in the month of September 2002, which demolition order came to be challenged by him before the J&K Special Tribunal by way of an appeal, in which appeal, the Tribunal appointed a Commissioner for spot inspection who inspected the site on 09.10.2002 along with the representative of the Srinagar Municipality, and submitted a report along with a sketch plan to the Tribunal, whereupon, the said appeal came to be allowed by the Tribunal and the demolition order came to be set aside permitting him to raise the construction in question, in accordance with the permission, without adhering to the condition of CSA 16/2017 Page 4 of 9 setbacks required by the building permission granted, and aggrieved whereof, the plaintiff-appellant herein filed a writ petition before this High Court against the said order of the Tribunal, being OWP No. 604/2004, which writ petition came to be dismissed on 08.07.2005, whereafter, the plaintiff-appellant herein instituted under reply suit.
3. The Trial Court on the basis of the pleadings of the parties framed two issues putting onus therein to prove the same upon the plaintiff-appellant herein, in discharge whereof, the plaintiff/appellant herein examined five witnesses besides appearing himself as a witness, whereas the defendant. 1-respondent 1 herein did not choose to lead any evidence as also the other defendants in the suit being respondents herein, whereupon, the trial Court in terms of Judgment and decree dated 13.09.2012 decreed the suit in favour of the plaintiff-appellant herein against the defendant 1- respondent 1 herein directing him not to continue with the construction on spot as the same affects the easementary rights, light and air, of the plaintiff/appellant herein further directing the official defendants/respondents herein not to allow the continuation of the said construction by the defendant no. 1-respondent no. 1 herein.
4. Dissatisfied with the impugned Judgment and Decree dated 13.09.2012 passed by the trial Court, the defendant 1-respondent 1 herein preferred an appeal against the same on 11.12.2012 before the appellate court and during the pendency of the said appeal after the plaintiff-appellant herein entered his appearance before the Appellate Court, the defendant 1- respondent 1 herein filed an application for appointment of a Commissioner on 04.10.2013, for inspecting the disputed site in order to have the actual position existing at site ascertained in the light of claim, and counter claim of the parties, which application came to be allowed by the CSA 16/2017 Page 5 of 9 appellate court in terms of Order dated 10.10.2013, after the counsel for the respondent in the appeal, being plaintiff appellant herein expressed no objection to the appointment of commissioner as also to the payment of commissioner's fee to be shared by the parties and the appellate court in the said order of appointment of the Commissioner directed the Commissioner to conduct a site inspection and to make a report thereof on the following facts:-
1) Whether the disputed construction is raised immediately adjacent to the common wall or some gap has been maintained between the disputed construction and the common wall? And whether photographs depict the position on spot.
2) Whether disputed construction has blocked window, ventilators or in any manner had affected the easementary rights of respondents?
3) What is the actual location of the disputed construction as well as the respondents house with specific demarcation as to the measurement and direction?
5. The said Commissioner appointed by the appellate court in terms of Order dated 10.10.2013 visited the spot and submitted his report before the appellate court on 18.03.2014 along with the site plan and photographs taken on spot, whereafter, the appellate court after entertaining the said report on 18.03.2014 proceeded to decide the appeal and consequently, decided the same on 26.11.2015, in terms of the impugned Judgment and Decree, whereby, the Appellate Court allowed the appeal and set aside the CSA 16/2017 Page 6 of 9 Judgment and Decree of the trial Court, aggrieved whereof, plaintiff- appellant herein has preferred the instant Civil 2nd Appeal.
6. On 24.05.2023, the following substantial question of law came to be framed by this Court after hearing the counsel for the parties for determination:-
01. Whether the learned First Appellate Court without solociting the objections from the parties to the report of a Commissioner appointed by it, can decide the appeal on the basis of the said report.
7. Heard counsel for the parties and perused the record.
It is significant to mention here that after the amendment of Section 100 CPC pursuant to the Code of Civil Procedure (Amendment Act of 1976) the scope of second appeal has been considerably narrowed down and substantially curtailed, although, under Section 100 CPC, the High Court can not only interfere with the decree passed by the lower Appellate Court, if it is contrary to law, but also can decide a question of fact thereunder, in certain circumstances, provided such a question arises in the case and is necessary to be decided.
8. Before proceeding further in the matter, it becomes imperative to refer to the provisions of Order 26 Rule 9 and 10 of the Code of Civil Procedure, being relevant and germane to the controversy. Under Rule 9 supra, the Court is enabled to appoint a Commissioner to hold local investigation for the purposes of elucidating the matter in dispute. It is also significant to mention here that the power of appointment of a Commissioner under Order 26 Rule 9 has been held not to be at par with the power of appellate court in regard to the provisions of Order 41 Rule
27. Furthermore, it is also significant to mention here that power to CSA 16/2017 Page 7 of 9 appoint the Commissioner under Order 26 Rule 9 is not only exercisable by the trial Court but also by an Appellate Court.
Under Order 26 Rule 10, a Commissioner appointed under Order 26 Rule 9 after making local inspection directed by a Court has to submit a report thereof along with any evidence taken by him during the said process, after reducing in writing the same together with the report, and, such report of the Commissioner constitutes an evidence in the suit and is treated part of the record, providing further that such Commissioner can be examined by the Court suo moto or upon a prayer made by any of the parties to the case leaving to the discretion of the Court either to grant or refuse permission to a party for examination of such a Commissioner with an underlying object that such a Commissioner is not harassed.
It is also pertinent to note here that though there is no provision contained in the code for inviting objections against the report of the Commissioner appointed by a Court under Order 26 Rule 9, but in case any objections are filed by either of the parties to the report of the Commissioner, it is the duty of the Court to consider such objection, and, if no such objection is taken by any party to such report, it cannot be allowed to be taken in the subsequent proceedings i.e., before the first appellate court, or, if it is not taken before the first Appellate Court, it cannot be taken in the 2nd Appeal.
9. Keeping in mind the aforesaid position and principles of law and reverting back to the case in hand, it is not in dispute that the application filed by the defendant 1-respondent 1 herein before the first appellate court for appointment of Commissioner on 04.10.2013 was never opposed or objected by the plaintiff-appellant herein, rather, the appointment of the said Commissioner was consented to by the plaintiff- CSA 16/2017 Page 8 of 9 appellant herein and in furtherance of such consent, the commissioner came to be appointed and the fee payable to him was agreed to be borne by the parties in equal proportion.
10. Perusal of the record of the Appellate Court also indisputably tends to show that the Commissioner, after conducting spot inspection, submitted a report supported with a sketch plan and photographs taken there on spot on 18.03.2014 before the said court, and though, on the said date, the plaintiff-appellant herein was not present before the appellate court, yet, thereafter the counsel for the appellant herein have had remained present on two subsequent dates and had not made any prayer for filing objections to the said report instead on 01.07.2014, the appearing counsel for the parties sought time to argue the main case and, thereafter, availed multiple opportunities as appears from the record of proceedings of the appellate court for the purpose and finally argued the appeal on 26.11.2015, on which date, the impugned Judgment and Decree came to be passed.
11. Thus, it is evident that during the intervening period w.e.f the date of filing of the report by the Commissioner i.e., 18.03.2014 till 26.11.2015, neither the plaintiff-appellant herein nor his counsel either objected to the Commissioners report or else disputed the same inasmuch as also did not seek permission of the appellate court for examination of the said Commissioner. The said report, thus, seemingly has been acknowledged and accepted by the plaintiff-appellant herein, even without reserving any right to object to the same in any further proceedings. Therefore, in presence of the aforesaid factual position obtaining in the matter inasmuch as having regard to the position and principles of law referred in the preceding paras qua the provisions of Order 26 Rule 9 CSA 16/2017 Page 9 of 9 and 10, it is manifest that the appellate court has not committed any error either by directing the appointment of Commissioner, entertaining the report of the Commissioner or else relying upon the report of the said Commissioner for the disposal of the appeal, more so in view of Order 26 Rule 10 (2) supra in particular wherein it is provided that report of such a Commissioner upon being submitted before the Court becomes an evidence and forms part of the record and need not to be proved, unless, of course, the report is objected to or disputed by a party.
12. Viewed thus, what has been observed, considered and analysed hereinabove, the instant Civil Second Appeal fails and is accordingly dismissed, along with all connected applications. Interim direction, if any, shall also stand vacated.
(Javed Iqbal Wani) Judge SRINAGAR 10.10.2024 Hilal Ahmad Whether the judgment is reportable? Yes/No Whether the judgment is speaking? Yes/No Hilal Ahmad Ganie I attest to the accuracy and authenticity of this document CSA 16/2017