Patna High Court
Indian Oil Corporation Limited And Ors. vs Kamlakar Dubey And Anr. on 25 May, 1984
Equivalent citations: AIR1985PAT103, AIR 1985 PATNA 103, (1984) PAT LJR 900
ORDER M.P. Varma, J.
1. Having heard the learned Advocate Sri Krishnan Prakash Singh for the petitioners and after perusal of the lengthy application with all its annexures and also long order dt/- 13-4-1983 (the order impugned) passed by the learned Munsif, I can simply hold that the direction for appointment of a Pleader Commissioner to ascertain regarding the factum of existence of a girls' School in the Barauni Oil Refinery is neither warranted in law nor desirable on facts.
2. This order is premature even on the Court's own orders available on record which provided for considering the desirability of the appointment of a pleader Commissioner only after hearing the parties on injunction-matter.
3. In the present case, only one party was heard on injunction matter and the impugned order followed thereafter.
4. The suit is for restraining the Defendants petitioners from appointing a lady Principal of a girls' High school which was in the process of being set up by the Refinery authorities. In other words the advertisement as contained in annexure 6 was meant for a proposed girls' High School. It mentioned nothing about the opposite party No. 1 as his status of Head Mastership of the Indian Oi! Company Middle school Barauni Refinery township, Begusarai.
5. I need not discuss the maintainability or otherwise of the suit brought by opposite party No. 1, but on annexure 6 itself, it is apparent that opposite party No. 1 Sri Kamlakar Dubey is not at all affected. It is meant for a different proposed school altogether, the existence whereof as a separate entity is yet to emerge. It is strange as to how in the suit, the said opposite party No. 1 invoked the jurisdiction of the Civil Court for an appointment of a pleader Commissioner to ascertain something not in existence. It is well settled that interlocutory application for grant of temporary injunction, must be heard only on the basis of the pleadings averred in the plaint and our High Court has gone even to this extent that even amendments brought about in the plaint may to be looked into for determining the grant of injunction in favour of the plaintiff. It is too much for the plaintiff to ask the court to collect materials for hearing the injunction matter.
6. The impugned order has completely overlooked that collection of the materials desired was not required for the purposes of hearing injunction matter because on the very wordings of the advertisement-Annexure 6. for appointment of a lady principal, no cause of action could accrue in favour of opposite party No. 1, since the advertisement did not touch him at all.
7. The principle behind the appointment of a pleader commissioner is envisaged in Order 26 of the Civil P.C. for local inspection does not warrant the appointment as made by the Order impugned. It is highly unappealing that a simple suit brought by opposite party No. 1 for a relief of injunction to implement the advertisement aforesaid could be well determined by the court below by referring to the averments where injury was alleged, to have been caused to him and thereafter consider the propriety of granting interim relief, if so required.
8. The court has, instead ignored the scope of the suit altogether and embarked upon consideration of question for appointment of a pleader commissioner, which I have already held was neilher warranted nor desirable.
9. In the result, the application succeeds and order impugned is set aside with costs.
10. The Court below is directed to dispose of the matter without any delay. Let the records be sent down immediately.