Allahabad High Court
Lalti Devi And Another vs Bindu Bihari Verma And 10 Others on 25 July, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on 01.04.2022
Delivered on 25.07.2022
Case :- WRIT - C No. - 41940 of 2013
Petitioner :- Lalti Devi And Another
Respondent :- Bindu Bihari Verma And 10 Others
Counsel for Petitioner :- Arvind Srivastava,Ram Milan Mishra
Counsel for Respondent :- Umesh Vats
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for petitioners.
2. The petitioners who are defendants in the suit have assailed the order dated 03.07.2013 passed by the Additional District Judge, Court No.1, Jaunpur in Civil Revision No.148 of 2007 whereby the revision court has allowed the application of respondents/plaintiffs for appointment of court commissioner.
3. The facts, in brief, are that respondent no.1 and 2 instituted a suit bearing Original Suit No.589 of 2003 praying for a decree of injunction in respect of their 1/3 share and rendition of account in respect of jwellery business being run in the suit property.
4. The suit has been instituted on the ground that the suit property was joint property and was purchased in the name of Urmila Devi, Lalti Devi, and Bindu Devi through various sale deeds. The construction lying before the sale deed on the suit property was demolished, and a house and shop were constructed over the said suit property after obtaining permission from the competent authority. It is further pleaded that it was agreed upon between the brothers i.e. husband of Urmila Devi, Lalti Devi, and Bindu Devi that the house shall remain joint property, and business in the house shall be run in the name of the wife of Bindu Bihari Verma (plaintiff no.1) and Nanhe Lal Verma (defendant no.2). It was also agreed that business shall be run under the supervision of Nanhe Lal Verma and in the name of 'Kirti Kunj Jwellers. In the said business, Urmila Devi-plaintiff no.2 wife of Bindu Bihari Verma (plaintiff no.1), and Lalti Devi wife of Nanhe Lal Verma-(defendant no.1) will be sleeping partners, and Nanhe Lal Verma will act as an acting partner.
5. It is further pleaded that respondents/plaintiff came to know that Bindu Devi-defendant no.3 and Ram Asrey Verma-defendant no.4 adopted the son of Lalti Devi and Nanhe Lal Verma. The respondents/plaintiffs further pleaded that they came to know that share of Bindu Devi in the suit property has been given to Nanhe Lal Verma which led to creating a doubt in the mind of respondents/plaintiffs that their share may be usurped by the petitioners/defendants. The respondents/plaintiffs demanded the petitioners/defendants to show accounts of the business, but petitioners/defendants refused to show the account of the business which led to filing the present suit praying for the aforesaid relief.
6. In the said suit, respondents/plaintiffs submitted an application 8Ga on 08.12.2003 under Order 26 Rule 9 of C.P.C. to prepare a map of the suit property and also make an inventory of gold, silver, and jwellery in the shop and the accounts of the business.
7. The aforesaid application was contested by the petitioners/defendants by filing objection 20Ga contending inter-alia that application 8Ga is misconceived.
8. The application 8Ga was rejected by the trial count on the ground that more than three and half years have passed since the institution of the suit, but respondents/plaintiffs did not press for disposal of the said application, therefore, at this stage, no ground is made out for entertaining the application 8Ga. Accordingly, the trial court dismissed the application 8Ga vide order dated 26.07.2007.
9. The respondents/plaintiffs preferred Civil Revision No.148 of 2007 against the order dated 26.07.2007 on the ground that the trial court has committed material irregularity in rejecting the application 8Ga of the respondents/plaintiffs. The aforesaid revision was contested by the petitioners/defendants contending interalia that revision under Section 115 of C.P.C. against an order rejecting or allowing the application is not maintainable.
10. The revision court vide order dated 03.07.2013 allowed the revision and remanded the matter to the trial court to decide the application 8Ga under Order 26 Rule 9 of C.P.C. afresh.
11. Challenging the aforesaid order, learned counsel for the petitioners has contended that an order allowing or rejecting the application under Order 26 Rule 9 of C.P.C. is an interlocutory order, and as it has not decided any issue between the parties or disposed of the suit finally, therefore, revision is not maintainable against the said order.
12. In support of his contention, learned counsel for the petitioners has placed reliance upon the judgement of this Court in the case of Ram Ishwar @ Rameshwar and Others Vs. Laxmi Narain and Another 2007 (102) RD 258 and judgement of Uttrakhand High Court in the case of Rajesh Kumar Gautam Vs. Maha Mandleshwar Vedabayasanad Geeta Ashram 2003 (95) RD 521.
13. Counsel for the respondents was not present. However, a counter affidavit has been filed by the respondents in which it has been pleaded that appointment of the court commissioner was necessary as the suit is for accountancy. It is further stated that an order rejecting or allowing the application amounts to a 'case decided' and as such revision is maintainable against the said order.
14. I have considered the argument of learned counsel for the petitioners and perused the record.
15. The fact as emanates from the record reflects that case of the respondents/plaintiffs is that suit property is a joint family property in which a business of jwellery is being run. According to the plaint allegation, respondent no.2 was also a sleeping partner in the family business to the extent of 30% share. At the time of filing of the suit, respondents/plaintiffs also filed an application 8Ga under Order 26 Rule 9 of C.P.C. for the appointment of the court commissioner to make an inventory of the accounts and gold, silver, and jwellery lying in the stock of the firm. The trial court instead of going into the merits of the case proceeded to reject the same on the ground that more than three and half years have passed since the institution of suit and respondents/plaintiffs have not pressed the application 8Ga filed on 08.12.2003, therefore, there is no good ground to appoint court commissioner at this stage.
16. The trial court did not dwell upon the merits of the case nor endeavoured to find out as to whether the appointment of the court commissioner is necessary for effective and proper adjudication of the lis involved in the suit between the parties.
17. This Court in the case of New Meena Sahkari Awas Samiti Ltd. LKO. Vs Additional District Judge, CT. No. 2 LKO; 2016 6 ADJ 595, after considering various pronouncements of the Apex Court, has held that the court cannot prevent a party from adducing the best evidence, if such evidence, can be gathered with the help of the Commissioner. In this respect, it would be apt to reproduce paragraph no. 29, 30, 32, 33, 34, and 35 of the said judgement:-
"29. In a suit for injunction to restrain the defendants from interfering with the possession due to alleged encroachment into the land of the plaintiff, one of the methods to find out as to whether or not there is encroachment is to have the local investigation done by a competent Commissioner.
30. A Commissioner for local investigation is deputed under Order 26 Rule 9 CPC when the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or for ascertaining any other matter mentioned in the said rule. The object of local investigation under the above provision is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record already recorded. It clarifies or explains any point which is left doubtful on the evidence on record.
32. Accordingly, rejected the same on the ground that at the stage of arguments there is no necessity for issue of Amin Commissioner. Thus, keeping in view the law on the point in issue, as stated herein above, and the rival averments made by the parties as well as the evidence on record, a Commissioner's report of local investigation was absolutely necessary in this case. The appellate Court, therefore, was not justified in rejecting the prayer of the petitioner/ plaintiff for issue of commission. As in the case of Ponnusamy v. Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad 33, it is observed as follows : -
"The object of the local investigation under Order 26 Rule 9 is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in Court but could be taken only from its peculiar nature on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner in effect is a projection of the Court appointed for a particular purpose. In this regard the implication of Order 26, Rule 10 cannot be lost sight of when it says that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. A party has a right to place evidence which he could require to substantiate his case before the Court and it is the duty of the Court to receive such evidence unless there are other justifiable factors in law to decline to receive it. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under Order 26 Rule 9, When the Court declines to issue the Commission asked for to make local investigation that order certainly disposes of the right claimed by the party to place the requisite evidence on his behalf. Therefore, an order refusing to appoint a Commissioner under Order 26 Rule 9 to make local investigation and report is a "case decided" and hence revisable under Section ".
33. And in the case of Shreepat vs. Rajendra Prasad & Ors., 2000 (2) JCLR 462 (SC), Hon'ble the Apex Court held as under :-
"In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or Khasra No 257/1. This having not been done has resulted ' in serious miscarriage of justice. We consequently allow the appeal, set side' the order passed by the courts below as affirmed by the High Court and remand the case to the trial court to dispose of the suit afresh in the light of the observations made above and in accordance with law".
34. In the case of Haryana Waqf Board vs. Shanti Sarup and others (2008) 8 SCC 761, Hon'ble the Supreme Court held as under:-
"It is also not in dispute that even before the appellate court, the appellant Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land."
35. Accordingly, the Court cannot prevent a party from adducing the best evidence, if such evidence can be gathered with the help of a Commissioner. Refusal of the request of the party to appoint a Commissioner under Order 26 Rule 9 CPC to make a local investigation in an appropriate case amounts to failure of exercise of jurisdiction vested in it. In this view of the matter, I find that the impugned order cannot be sustained and the action on the part of appellate court, rejecting the prayer of the petitioner/ plaintiff for issue of commission most probably will produce error or defect in the decision of the case on merits. Therefore, the impugned order dated 23.2.2012 passed by opposite party no.1/ Additional District Judge, Court no.2 Lucknow liable to be set aside."
18. In view of the judgement of this Court in the case of New Meena Sahkari Awas Samiti Ltd. (supra), the trial court in the instant case ought to have considered the application of the respondent under Order 26 Rule 9 of C.P.C. on merit so as the valuable rights of the respondents to produce the best evidence may not be defeated. The trial court instead of considering the application under Order 26 Rule 9 of C.P.C. on merit took a very technical approach in rejecting the application of respondents.
19. In such view of the fact, this Court finds that the trial court has committed jurisdictional error in not deciding the application 8Ga within the parameters of Order 26 Rule 9 of C.P.C. rather it was swayed by the fact of delay in pressing the application 8Ga by the respondents/plaintiffs.
20. Now, the question which arises for consideration is whether in the facts of the present case when the trial court has committed jurisdictional error in rejecting the application 8Ga whether revision under Section 115 of C.P.C. as applicable in the State of U.P. shall lie or not.
21. In this respect, it would be apt to reproduce Section 115 C.P.C. as applicable in the States of U.P:-
"115. Revision (1) A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where no appeal lies against the order and where the subordinate court has--
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity.
(2) A revision application under sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court.
(3)The superior court shall not, under this section, very or reverse any order made except where,-
(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made."
22. In the case of Rama Shanker Tiwari Vs. Mahadeo and Others 1968 A.W.R. 103 (F.B.), Full Bench considered the meaning of the 'case decided' and held that the order allowing or disallowing an application for amendment in pleading is a case decided and is revisable in this Section, if the amendment sought has or is likely to have a direct bearing on the rights and obligation of the parties. Paras 23 & 24 of the said judgement are reproduced herein below:-
"23. I am, therefore, of opinion that every order granting or dismissing an application for amendment of pleading will not give rise to a case decided revisable u/S. 115 of the Code. An order allowing or disallowing an application for amendment of pleading may however, give rise to a case decided revisable under that Section if the amendment sought has or is likely to have a direct bearing on the rights and obligations of the parties and affects or is likely to affect the jurisdiction of the Court. To this extent the decision in Mst. Suraj Pali's case can, in may opinion, be said to be no longer good law.
24. The opinion of the majority of Judges constituting the Full Bench is that an order passed u/O. VI R.17 of the CPC, either allowing an amendment or refusing to allow an amendment, is a "case decided" within the meaning of that expression in S.115, Code of Civil Procedure."
23. Now, applying the principles laid down in the case of Rama Shanker Tiwari (supra), it can safely be concluded that if an order deciding an application would have a direct bearing on the rights of the parties, if it is allowed or rejected, same would amount to 'case decided' and revision would lie.
24. Section 115 (3) (ii) of C.P.C. as applicable in Uttar Pradesh clearly states that the order, if allowed to stand, results in failure of justice or causes irreparable injury to the party against whom it is made, the revision under Section 115 of C.P.C as applicable in the State of U.P. is maintainable.
25. Viewed from this angle, if any order illegally passed by the court below on any application is allowed to stand affecting the rights of parties, it would cause the failure of justice or cause irreparable injury to the party against whom it is made, therefore, if said condition is present, the revision against such order passed by the court below vide Section 115 (3) (ii) of C.P.C. as applicable in the State of U.P. would lie.
26. In view of aforesaid discussions, this Court believes that the trial court in not deciding the application under Order 26 Rule 9 of C.P.C. on merit and dismissing the same by taking a pedantic view has exercised its jurisdiction illegally and with material irregularity, therefore, the case being covered under Section 115 (1)(c) and Section 115 (3)(ii) of C.P.C., the revision would lie. In such view of the fact, this Court finds that revision in the instant case is maintainable.
27. So far as the judgement relied upon by the learned counsel for the petitioners in the case of Ram Ishwar @ Rameshwar (supra) is concerned, this Court finds that in the said case, the Court did not consider the Full Bench judgement of this Court in the case of Rama Shanker Tiwari (supra) which defines the meaning of 'case decided' and further the Court has not considered the issue in the light of Section 115 (3)(ii) of C.P.C. as applicable in the State of U.P.
28. So far as another judgement relied upon by the learned counsel for the petitioner in the case of Uttrakhand High Court in the case of Rajesh Kumar Gautam (supra) is concerned, the Uttrakhand High Court was considering Section 115 of Central Act and did not consider the Section 115 of C.P.C. as applicable in the State of U.P.
29. In such view of the fact, this Court finds that the revision court has not committed any error in holding that revision is maintainable against the order passed by the trial court and has rightly remanded the matter to the trial court to decide the application under Order 26 Rule 9 of C.P.C. afresh.
30. Thus, for the reasons writ petition lacks merit and is accordingly, dismissed with no order as to costs.
Order Date:- 25.7.2022 Sattyarth