Andhra HC (Pre-Telangana)
G. Parvatha Reddy vs Boya Nargarjuna @ Nagarjuna Rao on 29 August, 2005
Equivalent citations: 2006(1)ALT146
ORDER V.V.S. Rao, J.
1. The petitioner is the defendant in O.S. No. 33 of 2005 on the file of the Court of the Junior Civil Judge, Rayadurg. The respondent herein filed the suit for perpetual injunction, inter alia, alleging that he raised a hut and stone fencing in Survey No. 483-A5, that he is residing in the hut with his wife and minor children and that the defendant, who is inimical to him, is threatening to remove the hut with force. He also filed an interlocutory application under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908 (C.P.C.), being I.A. No. 97 of 2005, for ad interim injunction. The learned trial Judge on 26-9-2003 passed the order, which reads as follows:
Heard. Admittedly the schedule site is a poramboke land. The counsel for the plaintiff argued the schedule site is poramboke and the plaintiff constructed a hut and in possession of remaining site, the defendant, without having any manner of right, went to remove the schedule property. Hence interim injunction is granted and the petitioner has filed third party affidavits to remove the possession.
In view of the arguments admitted the schedule property site is poramboke one. The petitioner except the producing photograph and Electricity Bill did not produce any documentary evidence about the existence of the house about the Grampanchayat records. But, the photograph shows hut is in existence. If it is removed, there will be loss to the petitioner.
Under the circumstances 'Status quo' is granted directing the both parties to maintain the same.
Issue urgent notice to respondent by 10-3-05.
2. After receiving notice, the petitioner/ defendant filed counter and I. A. No. 97 of 2005 was coming for enquiry. On 15-4-2005, the trial Court marked Exs.A-1 to A-5 for the plaintiff and Exs.B-1 to B-10 for the defendant. One of the documents produced by the petitioner/defendant was the report of the Commissioner, in the suit filed by the defendant on the file of the Court of the Additional Senior Civil Judge, Ananthapur. However, the trial Court on perusal of the record came to the conclusion that it is not a document, which is in accordance with the proforma prescribed by the Government. Therefore, the matter was adjourned till 19-4-2005, giving liberty to the defendant to produce necessary evidence like voters list, while refusing to mark document Nos. 3 and 19. Be that as it is, when the matter was called on 19-4-2005, the learned trial Judge appointed an Advocate Commissioner for local inspection. The following order was passed on that day.
Heard both sides.
The counsel for respondent argued that the respondent already obtained injunction orders from the Addl. Sub Court, Anantapur, in respect of property relating to the suit but the rough sketch plan and the boundaries mentioned in the plaint in the instant case are false and requested to relying the Commissioner appointed and submitted before the Sub Court. Under these circumstances a doubt is born to the Court about the boundaries of the property of instant case. Hence, Sri G. Ramakrishna is appointed as Advocate-Commissioner for local inspection of schedule property and to note the physical features and boundaries of the schedule property by considering report with the help of Mandal Surveyor. His fee is fixed at Rs. 1,000/-. Both parties are directed to bear the expenditure, for report by 23-4-2005.
3. Aggrieved by the order of the trial Court, dated 19-4-2005, in I.A. No. 97of 2005, the present Civil Revision Petition is filed under Article 227 of the Constitution of India. The learned counsel for the petitioner, Sri S.V. Ramana, contends that in the absence of any specific application either by the plaintiff or the defendant, the trial Court exceeded its jurisdiction in appointing an Advocate Commissioner to note the physical features and boundaries of the schedule property for considering the plan of the defendant filed before the trial Court. Per contra, the learned counsel for the sole respondent/plaintiff, Ms. Hema Jaiswal, submits that the trial Court passed the impugned order in exercise of discretion, and therefore, a revision petition under Article 227 of the Constitution of India is not maintainable. She placed reliance on a decision in Buta Singh v. Superintending Engineer 2004 (5) ALT 3.4 (DN OHC).
4. The short point that would arise for consideration is whether the trial Court suo motu can appoint an Advocate Commissioner only for the purpose of considering a document filed by either of the parties as is done in the present case.
5. Order XXVI of C.P.C. contains 22 Rules. There is no provision conferring suo motu powers on the trial Court or any Court vested in the powers under C.P.C. to appoint Commissions either for the purpose of examination of witnesses, or to make local investigations, or for the sale of movable properties, or for the performance of a ministerial act or for the purpose of examining and adjusting the accounts. That a Court cannot appoint a Commission without there being an application, is indicated in Rule 20 of Order XXVI of C.P.C., which is to the effect that the High Court may issue Commission to examine witnesses upon an application made by a party to the proceedings or upon an application by a law officer of the State Government. The power of the High Court under Rule 19 of Order XXVI of C.P.C. to issue Commission to examine witness in a given situation is itself conditioned by making an application by a party to the proceedings of a foreign Court or the Government law officer.
6. The respondent filed an application under Order XXXIX Rule 1 of C.P.C., for ad interim injunction. Whether the said Rule empowers the trial Court to appoint an Advocate Commissioner for local inspection of the suit schedule property and to note physical features and boundaries of schedule property while considering prayer for ad interim injunction. Order XXXIX Rule 1 reads as under:
Cases in which temporary injunction may be granted.
(1) Where in any suit it is proved by affidavit or otherwise-
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, or
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.
7. The Court may grant a temporary injunction or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property when it is proved by affidavit that the property in dispute is in danger of being wasted, damaged or alienated or that the defendant threatens or intends to remove or dispose of his property with a view to defrauding the creditors or that the defendant threatens to dispossess the plaintiff or otherwise cause injury in relation to the property in dispute. It is no doubt true that the Court is empowered "to make such order" for the purpose of staying or preventing the wastage or damage. In an application for ad interim injunction even if there is no separate prayer, it is always permissible for the civil Court to pass an order other than an order of temporary injunction with a view to prevent wastage or damage or alienation.
8. In R. Lakshmaiah v. N. Lakshmi (D.B.), a Division Bench of this Court considered the question whether it was within the jurisdiction of the civil Court to appoint a receiver when an application was made for ad interim injunction. The Division Bench answered the query in the positive and observed as under.
Under Order 39 Rule 1 C.P.C. the Court may by order grant a temporary injunction or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit until the disposal of the suit or until further orders, thus, the Court has wide powers not only to grant a temporary injunction, but to make such other order for any of the purpose referred to above. This would certainly include an order for the appointment of a receiver. It is true that in (supra) the learned Judges observed that the appointment of a receiver cannot be justified by invoking the words "make such other order" in Order 39 Rule 1 as it could not be stated that they contemplated the appointment of a receiver. These observations were really unnecessary for the purpose of that case as it was concerned with a case where the plaintiff was in possession and the learned Judges rightly held in such circumstances that the plaintiff could not be dispossessed in his application for injunction without an application for appointment of a receiver by the defendant. Further under Order 40 Rule 1 C.P.C. the Court has the power to appoint a receiver where it appears to the Court to be just and convenient. The said order does not require that there should be an application for the appointment of a receiver. Even without such an application if the facts and circumstances are brought to the notice of the Court justifying the appointment of a receiver it may do so suo motu even without an application by way of the parties for that purpose.
9. A reading of the above Judgment would show that when the Court is not able to decide about the possession while considering an application under Order XXXIX of Rule 1, the Court can treat the property as "in medio" and appoint a receiver to prevent a scramble and to preserve property until the rights of the parties are ascertained. Insofar as an application for ad interim injunction is concerned, the Court has to decide based on the affidavit evidence or other evidence and it would not be permissible for the civil Court to appoint an Advocate Commissioner for local inspection or for noting physical features as it amounts to gathering evidence. The trial Court in this case has committed a grave error, which is apparent on the face of record, and therefore, it is a fit case to exercise jurisdiction under Article 227 of the Constitution of India in the interest of justice and to prevent miscarriage of justice.
10. The Civil Revision Petition is accordingly allowed and the Court of the Junior Civil Judge, Rayadurg, is further directed to dispose of I.A. No. 97 of 2005 on the basis of available evidence, within a period of two weeks from the date of receipt of a copy of this order.