Madhya Pradesh High Court
Mayaram vs Seva Sahkari Sanstha Maryadit Unnat ... on 19 April, 2018
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
Writ Petition No.8394/2015
(Mayaram & another vs. Seva Sahkari Sanstha and another)
Indore, Dated: 19.04.2018
Shri Pramod C. Nair, learned counsel for the
petitioners/plaintiffs.
Shri Sanjay Sharma, learned counsel for the respondents.
This writ petition under Article 227 of the Constitution of India at the instance of the plaintiffs is filed taking exception to the order of the trial Court dated 28.09.2015 dismissing three applications, viz. Under Section 340 Cr.P.C., Order 26 Rule 9 C.P.C and under Order 13 Rule 10 C.P.C.
02. Facts relevant and necessary for disposal of this petition are in narrow compass: The plaintiffs have filed a suit for permanent injunction. The plaintiffs filed an application seeking spot inspection and report of the Commissioner by filing an application under Order 26 Rule 9 CPC. The report was submitted and the Commissioner was cross-examined. Thereafter, the plaintiffs moved an application under Section 340 Cr.P.C for taking action against the Commissioner for committing an offence under Section 191 IPC having submitted false report de hors facts on record. The trial Court has deferred the decision on that application, on the premise that the aforesaid aspect is in the realm of the trial and shall be dealt with only after parties lead evidence.
03. Learned counsel for the petitioners/plaintiff contends that the approach of the trial Court is not in consonance with the settled legal principle in the context of the Commissioner's report submitted in the Court inasmuch as the trial Court ought to have addressed upon the allegation on submissions of false report contrary to existing material. The further evidence on the merits of the lis between the parties is not required to address upon the said application as the Commissioner has been examined and cross- examined over the report brought on record. Otherwise, the veracity of report based upon evidence led by the parties in the HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE Writ Petition No.8394/2015 (Mayaram & another vs. Seva Sahkari Sanstha and another) context of under Order 26 Rule 10 CPC is vulnerable and cannot be a matter of record for decision of the suit. The trial Court as such has committed patent jurisdictional error by deferring consideration of the application under Section 340 Cr.P.C.
04. Per contra, learned counsel for the respondent supports the impugned order with the contention that as the report is yet to be acted upon by the trial Court, hence, the veracity whereof can always be adjudged at the time of final disposal of the suit.
05. Heard.
06. Before adverting to rival contentions, it is apposite to observe that the provision as contemplated under Order 26 Rule 9 CPC is in fact and in effect to help facilitate appreciation of dispute between the parties by the Court by appointing Commissioner for such investigation as required in the matter of or for further elucidating facts in dispute, etc.
07. Order 26 Rule 10(1) CPC deals with the procedure for appointment of the Commissioner and Sub Section (2) provides 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". Further, in the same provision, it is contemplated that on prayer of either parties permission may be accorded by the Court for the examination of the Commissioner in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. As such, if the plaintiffs have filed an application alleging false report dehors the record of the case, seeking prosecution of Commissioner through an application under 340 Cr.P.C., the trial Court, in all fairness, ought to have addressed on that application bearing in mind the sanctity attached to the report of the Commissioner and its being scope separable and independent to factum of the report submitted. Deferment of hearing on the said application, in the opinion of this HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE Writ Petition No.8394/2015 (Mayaram & another vs. Seva Sahkari Sanstha and another) Court, as rightly contended, tantamount to refusal to exercise the jurisdiction by the trial Court warranting interference by this Court under Article 227 of Constitution of India.
08. Accordingly, that part of the order dated 28.09.2015 rejecting the application under Order 340 Cr.P.C. is set aside with a direction to the trial Court to deal with the said application on merits and thereafter, proceed with the trial. So far as the order rejecting the application under order 13 Rule 10 CPC is concerned, this Court finds no reason to interfere in the impugned order as the plaintiffs intends to prick holes in the impugned order for the reason of discrepancy in the certified copy of the order obtained by him from the concerned Court, for which Court below is not responsible. The plaintiffs are always free to apply afresh for certified copy and file the same before the Court. Accordingly, the same is rejected.
09. So far as the application under Order 26 Rule 9 C.P.C. is concerned there cannot be successive application for Commissioner's report. More so, first report is already on record subject to scrutiny.
10. In view of the above no, orders are necessary as regards the order dated 17.11.2015 passed by the trial Court, the same stands upheld.
Hence, writ petition stands allowed partly and disposed of. It is made clear that this Court has not expressed any opinion on the merits of the case.
(ROHIT ARYA) JUDGE Jyoti Digitally signed by Jyoti Chourasia Date: 2018.04.20 10:34:49 +05'30'