Devi Charan vs The Court Of 7Th Additional District ...
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Allahabad High Court

Devi Charan vs The Court Of 7Th Additional District ... on 17 April, 2025

Author: Rohit Ranjan Agarwal

Bench: Rohit Ranjan Agarwal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:56604
 
Court No. - 9
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 5579 of 2017
 

 
Petitioner :- Devi Charan
 
Respondent :- The Court Of 7th Additional District Judge And 2 Others
 
Counsel for Petitioner :- Amit Verma,Krishna Mohan
 
Counsel for Respondent :- Akanksha Yadav,H.M.B.Sinha,Prem Prakash Yadav,S.C.
 

 
Hon'ble Rohit Ranjan Agarwal,J.
 

1. Heard Sri Krishna Mohan, learned counsel for the petitioner and Sri H.M.B.Sinha, learned counsel for respondent No.2.

2. Through this writ petition under Article 227 of Constitution of India, prayer has been made for setting aside the order dated 06.04.2013 passed by Court below and also to reject the Appeal No.144 of 2006 and Appeal No.69 of 2004 filed by respondents No.2 and 3.

3. The facts, in brief, are that the plaintiff-petitioner had instituted Suit No.370 of 1989 for partition of half of Khasra Abadi Nos.425 area 9 biswa, 425 & 442 area 10 Biswa each, 449 area 7 biswa, 439 area 9 biswa 10 biswansi and 450 area 140 sq.m. against respondents No.2 and 3. The suit was dismissed by the trial Court on 06.01.1995. The petitioner preferred Civil Appeal No.16 of 1995 which was allowed on 23.02.1998 against which the respondent had filed Second Appeal No.929 of 1998, which was dismissed by the coordinate bench of this Court on 03.12.1998. Aggrieved by the said order, the respondent had filed Special Leave to Appeal (Civil) No.3697 of 1999 before the Hon'ble Apex Court, which was dismissed on 16.08.1999.

4. In the meantime, execution proceedings were initiated by the plaintiff being Execution Case No.80 of 1998 in which Executing Court called for Amin report under Order XXVI, Rule 9 C.P.C. for preparation of final decree on 20.12.2000. The Amin Commission submitted his report 39C2 on 22.01.2001. Against the said report as well as map, so submitted, the contesting respondents filed their objections. The Executing Court on 26.4.2004 accepted the Amin Commission report and rejected the objections filed by the respondents. Aggrieved by the said order, a civil revision was filed which was dismissed on 12.5.2004. Respondent No.2 challenged the said order through Civil Misc. Writ Petition No.21833 of 2004 before this Court, which was dismissed on 12.7.2004 leaving it open to the respondent No.2 to challenge the same in the appeal, once the final decree is prepared.

5. In the meantime, respondent No.3 i.e. the other defendants in the suit, filed Misc. Case No.668 of 2004 against the report submitted by the Munsarim for payment of court fee of Rs.1,345/-. After the said court fee was paid, the appeal filed by respondent No.3 was converted into a regular appeal No.69 of 2004.

6. The Executing Court on 03.5.2006 prepared the final decree. The contesting respondent No.2 thereafter filed an appeal No.144 of 2006 challenging the order dated 26.4.2004 by which the Amin report filed at the preliminary stage has been accepted and the objection was rejected as well challenging the final decree dated 03.5.2006. The appeal was admitted on 09.10.2006.

7. An application 57C was moved for calling for fresh Amin/Commission report. The said application was allowed on 06.4.2013 hence the present writ petition by the plaintiff.

8. Sri Krishna Mohan, learned counsel for the petitioner submits that subsequent application moved by defendant-respondent No.2, at the appellate stage, is not maintainable as the first Amin/commission report is still on record and has not been set aside. According to him, the appellate Court was not justified in issuing the Amin /Commission and calling for its report exercising power under Order XXVI, Rule 9 C.P.C.. Reliance has been placed upon decision of coordinate Bench of this Court in case of Dinesh Chandra Gaur vs. Abhay Sood and Ors.(Misc. Single No.7082 of 2014) decided on 13.11.2014 and relied upon para 11 and 12 of the judgment, which are extracted hereas under :

"11. The provisions of Order XXVI Rule 9 of the CPC have been enacted with a purpose and the purpose is to enable the court to get a local investigation conducted by issuing a Commission for elucidating any matter in dispute or determining the market value of property in suit and other related matters, provided the court forms an opinion that it is requisite or proper to do so to achieve the said purpose. The Court can exercise this power even suo motu, however, these provisions cannot be put in service at the instance of a party to fill up any lacune in his evidence, neither the object of Order XXVI Rule 9 of the CPC is to facilitate a party to gather evidence in a case where the party itself can get the evidence. These provisions can be invoked at the discretion of the court; of course such discretion is to be exercised judiciously.

12. Thus, I am of the considered opinion that merely on the asking of a party to the suit or proceedings, the Commission under Order XXVI Rule 9 of the CPC cannot be issued. As observed above, for the purposes of issuing the Commission, the facts of the case should be such that the Court should be satisfied first that it is proper and requisite to do so."

9. Sri H.M.B. Sinha, learned counsel appearing for respondent No.2 submits that subsequent application moved under Order XXVI, Rule 9 C.P.C. is not barred. He further submits that when final decree was prepared, the two khasra numbers were included, which was not there in the preliminary decree. According to him, the share of defendant-respondent No.2 was wrongly shown in the final decree, which had led to filing of Amin/ Commission report. He then contended that order XXVI, Rule 9 C.P.C. does not restrict for issuance of Amin Commission. He also contended that the writ Court had left it open for challenging the Amin report when the final decree is prepared.

10. I have heard the respective counsel for the parties and perused the material on record.

11. Before adverting to decide the case in hand, a cursory glance of Order XXVI, Rule 9 C.P.C. is necessary for better appreciation of the case, which is extracted hereas under :

"9. Commissions 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."

12. From perusal of Rule 9 of Order XXVI C.P.C. it is clear that Court, in any suit, if it deems that local investigation is 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, it may issue a commission.

13. It is well settled that an appeal is a continuation of suit as such provisions of Order XXVI, Rule 9 C.P.C. would also apply at the appellate stage.

14. The Court below has recorded a specific finding while allowing the application 57C that Khasra No.579A and 579B were not included in preliminary decree. Once the said finding has been recorded, it clearly indicates that major irregularity was committed in preparation of final decree and the appellate Court had rightly proceeded to allow the application for Amin Commission.

15. The judgment relied upon by the petitioner's counsel in case of Dinesh Chandra Gaur (supra) is distinguishable in the present case as the coordinate Bench had held that Amin Commission cannot be issued to fill up any lacuna in the evidence.

16. Here it is not a case where the lacuna is being filled up. In fact it is a major irregularity committed by the Executing Court while preparing the final decree that certain plots were left out.

17. Considering the facts and circumstances of the case, I find that the Court below has not committed any error while allowing the application 57C for Amin Commission. No interference is required in the order impugned.

18. Writ petition fails and is hereby dismissed.

19. However, looking to the facts of the case that it is a partition suit of 1989, the appellate Court is hereby directed to proceeded with the appeal as expeditiously as possible and decide the same preferably within a period of four months from the date of production of a certified copy of this order, without granting any adjournment to either of the parties.

Order Date :- 17.4.2025

Kushal