Allahabad High Court
Khwaja Moinuddin Chishti Language ... vs Dr. Arif Abbas And Ors. on 18 January, 2023
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 19 Case :- CIVIL REVISION No. - 47 of 2022 Revisionist :- Khwaja Moinuddin Chishti Language University Thru. Registrar And Others Opposite Party :- Dr. Arif Abbas And Ors. Counsel for Revisionist :- Kumar Ayush,Pritish Kumar Counsel for Opposite Party :- Farooqahmad,Syed Azizul Hasan Rizvi Hon'ble Manish Mathur,J.
Heard Mr. Pritish Kumar learned counsel for revisionist and Mr. Viswa Nath Mishra learned counsel for opposite party No.1. In view of order being passed, notices to opposite parties 2,3 and 4 stand dispensed with.
Revision under Section 115 of the Code of Civil procedure has been filed against order dated 15th November, 2022 in regular suit No. 2216 of 2022 whereby application for issuance of commission under Order XXVI Rule 9 of the Code filed by the plaintiff-opposite party No.1 has been allowed.
At the very outset learned counsel for opposite party No.1 has raised preliminary objection regarding maintainability of revision under Section 115 of the Code with the submission that the order impugned is merely interlocutory in nature and does not amount in case decided as envisaged under Section 115 of the Code and therefore revision would not be maintainable. He has placed reliance on judgment rendered by Hon'ble Supreme Court in the case of Shiv Shakti Cooperative Housing Society, Nagpur versus M/s. Swaraj Developers and others reported in 2003 AIR (SCW) 2445 as well as judgment rendered by High Court of Madras in the case of Pormusamy Pandaram versus The Salem Vaiyappamalai Jangamar reported in A.I.R. 1986 Madras 33.
Learned counsel for revisionist in his rebuttal has submitted that neither of the aforesaid judgments relied upon by learned counsel for opposite parties are applicable in the present case since they do not consider the U.P. amendment incorporated in Section 115 of the Code and has in turn placed reliance on judgment rendered by co-ordinate Bench of this Court in the case of Lalti Devi and another versus Bindu Bihari Verma and others, Writ C No. 41940 of 2013 to submit that revision under Section 115 against decision on application under Order XXVI Rule 9 of the Code would be maintainable in terms of section 115(1) (c) and section 115 (3)(ii) of the Code since a jurisdiction has been exercised illegally and with material irregularity ignoring the specific conditions indicated in Order XXVI Rule 9 of the Code.
So far as maintainability of revision under Section 115 of the Code from an order passed in an application for issuance of commission under Order XXVI Rule 9 of the code is concerned, this court finds that the judgment rendered by co-ordinate Bench of this Court in Lalti Devi (supra) is to the point as considered the judgement rendered by Full Bench of this Court in the case of Rama Shanker Tiwari versus Mahadeo and others reported in 1968 AWR 103 in which the term 'case decided' has been explained in the following manner:-
"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."
The co-ordinate Bench has thereafter held revision to be maintainable under amended Section 115 as applicable in the State of Uttar Pradesh in the following terms:-
"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."
So far as judgment cited by learned counsel for opposite parties concerned, it is evident that the same do not consider the U.P. Amendment incorporated in Section 115 of the Code and would therefore be inapplicable in the present facts and circumstances of the case.
In the present case, although application under Order XXVI Rule 9 of the Code has been allowed but the proposition of law under Section 115 that even in such a case if jurisdiction has been exercised illegally and with material irregularity, revision would be maintainable finds support from judgment of co-ordinate Bench rendered in the case of Lalti Devi (supra) and in the light thereof, the present revision is held to be maintainable. A similar view has also been taken in a Division Bench judgment of this Court in the case of Aligarh Muslim University versus 7th Additional C.J.M. Aligarh and another reported in 1999 A.L.R. 571.
Present revision has been filed against order dated 15th November, 2022 passed by court concerned in regular suit No.2216 of 2022 whereby application for issuance of commission under Order XXVI Rule 9 of the Code has been allowed. Learned counsel for revisionist submits that order for issuance of commission was passed on the very first day of presentation of plaint without affording any opportunity of filing objections to the revisionist/defendants. It is submitted that even otherwise no reasoning whatsoever has been indicated in the impugned order which has been passed in a cursory manner without adverting to the fact whether such application can be allowed within the scope of Order XXVI Rule 9 of the Code particularly since the application pertained to issuance of commission to conduct an investigation and examination of documents relating to executive council meetings and minutes thereof and also pertaining to documents relating to constitution of executive council and building of the Vice Chancellor residence and for expenses incurred and modifications, alterations etc. Learned counsel has further submitted that application for issuance of commission can not be allowed for the purposes of collection of evidence but may be issued only for the purposes of corroboration of evidence led and therefore already on record. It is submitted that in the application which is not supported by affidavit, no reasoning whatsoever has been indicated for issuance of commission. It is submitted that as such application itself was not maintainable in terms of conditions specified under Order XXVI Rule 9 of the Code. He has placed reliance on the judgment rendered by Hon'ble Supreme court in the case of Padam Sen and another versus State of U.P. reported in A.I.R. 1961 Supreme Court 218 and judgment rendered by this Court in the case of Parvej Akhtar and other versus 4th Additional District Judge Agra and another reported in (1993) 2 ARC 304 as well as H.V. Nagendrappa versus M.H. Hanumappa and others reported in 2000 SCCOnLine Kar 164 and Naseeb Deen and another versus Harnek Singh reported in 2019 SCCOnLine HP 1034.
Learned counsel appearing on behalf of opposite parties has refuted submissions advanced by learned counsel for revisionist with submission that application was very well within the four corners of the conditions indicated in Order XXVI Rule 9 of the Code particularly when the aforesaid documents are in possession of the university authorities who are defendants themselves and therefore there was no manner in which the plaintiff-answering opposite party could have access to those documents and therefore commission was required to be issued in order to access aforesaid documents. It is further submitted that in the plaint, specific assertion has been made with regard to utilization of funds by Vice Chancellor of university as well as the fact that the executive council is not in accordance with the first statute of university and for proving of which, the aforesaid documents were necessarily required to be brought on record.
Considering submissions advanced by learned counsel for parties and upon perusal of material on record, it appears that application under Order XXVI Rule 9 of the Code dated 15th November, 2022 was filed for issuance of commission to conduct an investigation and examination of documents relating to executive council meetings and minutes held on various dates and documents relating to constitution of executive council and also relating to expenses incurred in modifications, alteration, enhancement made by defendants in the said building amounting to certain amount of money and for building of the Vice Chanellor's residence. The application is not supported by any affidavit and in fact referred to the plaint which was duly supported by affidavit. The said application has been allowed on the same date without inviting any objections from the defendants.
A perusal of impugned order, dated 15th November, 2022 makes it evident that no reason whatsoever has been recorded for allowing application for issuance of commission. A simple one line order has been passed 'Heard, application allowed."
For proper appreciation of the present dispute, it would be necessary to advert to the provisions of Order XXVI Rule 9 of the Code pertaining to issuance of commission which is in the following terms:-
" Commission to make 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 the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
A perusal of the aforesaid provision makes it evident that commission to make local investigations can be permitted by the court where it deems local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or ascertaining market value of any property, or amount of any mesne profit or damages or annual net profits. The purpose of issuance of commission as such is evident from the conditions indicated thereunder itself which is only for the purposes of elucidating primarily any matter in dispute. The provisions of Order XXVI Rule 9 of the Code do not make it applicable for the purposes of collection of evidence on behalf of the plaintiff.
Hon'ble supreme Court in the case of Remco Industrial Workers House Building Coop. Society v. Lakshmeesha M. and others reported in (2003)11 SCC 666;A.I.R. 2003 Supreme Court 3167 has already held that a plaintiff is liable to succeed on his own footing and not on the weakness of the defendant. As such the pleadings made in the plaint are required to be corroborated or substantiated by evidence which is also required to be placed on record by the plaintiff himself. The only exception in such a case could be where such evidence is beyond reach of the plaintiff or is in such a secured place that he would normally not have access thereto but for the issuance of commission for nature indicated in such a case, it would be necessary and incumbent upon the plaintiff to plead particularly as to why the plaintiff could not have access to such evidence which would therefore require issuance of commission for the purposes of collection of such evidence. Hon'ble Supreme Court in the case of Padam Sen (supra) has clearly held that it is not the business of court to collect evidence for party or even to protect the rival party from evil consequences of making forged entry in the books of accounts. It was held that defendants request which amounted to courts collecting documentary evidence which the defendants considered to be in their favour at that point of time could not be permitted. Relevant paragraph 15 of the judgment are as follows:-
"15. It cannot, however, be lost sight of that the burden to prove title and claim for possession of specific land in Survey No. 132/2 was initially on the plaintiff. Defendant 1 in the written statement contested the claim of the plaintiff and claimed title in itself. The grant of occupancy rights in favour of tenant Muniyappa contained in the order dated 28-5-1965 (Ext. D-3) was produced in the trial court without objection from the plaintiff and allowed to be exhibited and marked as Ext. D-3. When such a document of grant of suit land to the extent of 1 acre 3 guntas in favour of Defendant 1 was before the trial court, it was necessary for it to consider its effect on the subsequent grant dated 9-12-1969 (Ext. P-1) in favour of the erstwhile inamdar. The legal position not in dispute is that if the suit land in Survey No. 132/2 ? area 1 acre 3 guntas had already been granted by the order dated 28-5-1965 (Ext. D-3) to the tenant Muniyappa, the same land could not have formed part of the grant to the extent of 1/7th share to the erstwhile inamdar in the order dated 9-12-1969 (Ext. P-1). A clear legal issue, based on an earlier grant dated 28-5-1965 (Ext. D-3) and the subsequent grant dated 9-12-1969 (Ext. P-1) with the identity of the land under the two grants did arise before the trial court as well as the appellate court. The said issue has not been answered by any of the two courts below. The plaintiff has to succeed on the strength of its own case and not on the weakness of the case of the defendant. In opposing the prayer for remand, the learned counsel appearing for the plaintiff-respondent has placed strong reliance on the decision of the Privy Council in Kanda v. Waghu [AIR 1950 PC 68 : 77 IA 15] . The contention advanced is that since pleadings based on Ext. D-3 were not raised in the written statement of Defendant 1 and no issue on the basis of Ext. D-3 having been raised in the trial court, this Court should not remit the matter for retrial on the said issue."
The same analogy has also been drawn by co-ordinate Bench of this Court in the case of Parvez Akhtar (supra) in the following manner:-
"11. In other words, the object of local investigation is not so much to collect evidence, which maybe taken in the court, but just to facilitate the appreciation of the evidence led or nature of the controversy between the parties or to facilitate appreciation of any point, which is left doubtful in the evidence of the parties before the court. The object of issuance of commission is that some assistance may be derived from those facts found actually after the investigation by the Commissioner on the spot, but that investigation must be in respect of the matter in dispute and not otherwise. The legislature required that the discretion of the court can be exercised following all conditions with a view to obtain certain facts investigated by the Commissioner which promises peculiar facts and which can be had from the spot inspection itself, but that must be directly in respect of any matter in dispute. This is with a view to enable the court to properly and correctly appreciate evidence on record. The report of the Commissioner clarifies and explains any point which might appear to be doubtful after the evidence has been led by the parties. The provision of Order XXVI Rule 9, presuppose evidence on the record and independent evidence, led by the parties, which requires elucidation."
Various high courts in the country have also elucidated the provisions of Order XXVI Rule 9 in the same manner as indicated in the judgments rendered by High Court of Himanchal Pradesh in the case of Naseeb Deen (Supra) and H.V. Nangendrappa (supra) by the High Court of Karnataka.
Upon applicability of aforesaid judgments in the present facts and circumstances of the case, it is evident that application for issuance of commission to conduct an investigation and examination of documents although not supported by affidavit was even otherwise not maintainable in terms of Order XXVI Rule 9 of the Code as observed herein above particularly when there is no explanation furnished by the plaintiff as to why and how he could not have access the documents required or even importance and relevance of the aforesaid documents for purposes of elucidating a dispute particularly when even issues have not been framed and even objections were not called for from the defendants.
It has already been observed herein above that applications under Order XXVI Rule 9 can not be allowed merely for purposes of facilitating the case of one or the other party and it is not the business of the courts to discharge burden of evidence of either party.
In view of aforesaid, the order impugned dated 15th November, 2022 passed by the Court of Civil Judge, Senior Division, Malihabad, Lucknow in regular suit No. 2216 of 2022 being against law is set aside.
The revision consequently stands allowed. Parties to bear their own costs.
Order Date :- 18.1.2023 prabhat