Bombay High Court
Chhabutai Murlidhar Gaikwad And ... vs Uday Gulabrao Fokmare on 7 July, 2016
Bench: Prasanna B. Varale
1 jg.ao7,15 & 16.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
APPEAL AGAINST ORDER NO. 7 OF 2016
Santosh s/o Vishnu Avdhut
Aged about : 30 years, Occupation :
Agriculturist, Residing at Deosri,
Taluka Akot, District : Akola. ... Appellant/
(Org. Defendant)
// Versus //
Uday S/o Gulabrao Fokmare
C/o. Dr. Gulabrao Fokmare Aged about : 35
years, Occupation : Service, residing at
Deosri, Taluka : Akot, District : Akola. ... Respondent/
(Org. Plaintiff)
-----------------------------------
with
APPEAL AGAINST ORDER NO. 15 OF 2016
(1) Chhabutai Murlidhar Gaikwad
Aged about 57 years,
Occupation : Household
(2) Suresh Murlidhar Gaikwad
Aged about 35 years,
Occupation : Cultivator,
(3) Narendra Murlidhar Gaikwad
Aged about 33 years,
Occupation : Cultivator,
All R/o Deori, Tq. Akot, District : Akola.
(4) Tilottama Madhukar Dhanokar
Aged 28 years, Occ. Household
R/o. Belura, Tq. Nandura,
Distt. Buldana. ... Appellants
(Org. Defendants)
// Versus //
Uday Gulabrao Fokmare
Aged about : 35 years,
::: Uploaded on - 15/07/2016 ::: Downloaded on - 30/07/2016 08:30:14 :::
2 jg.ao7,15 & 16.16.odt
Occupation : Cultivator,
C/o. Mr. Gulabrao Fokmare
R/o. Deori, Tq. Akot, District : Akola. ... Respondent
(Orig. Plaintiff)
----------------------------------------
with
APPEAL AGAINST ORDER NO. 16 OF 2016
Sau. Indubai Balu Gaikwad
Aged about 40 years,
Occupation : Agriculturist,
R/o. Deori, Tq. Akot, District : Akola. ... Appellant
(Orig. Defendant)
// Versus //
Uday Gulabrao Fokmare
Aged about : 35 years,
Occupation : Cultivator,
C/o. Mr. Gulabrao Fokmare
R/o. Deori, Tq. Akot, District - Akola. ... Respondent
(Orig. Plaintiff)
--------------------------------------------------------------------------------------------------------
Shri Rahul D. Dhande with Shri Vipul B. Bhise, Advocates for the appellants
Shri Raghav G. Kavimandan, Advocate for the respondent
---------------------------------------------------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
DATE : 7-7-2016.
JUDGMENT :
Heard Shri Rahul D. Dhande with Shri Vipul B. Bhise, learned
counsel appearing for the appellants and Shri Raghav G. Kavimandan,
learned counsel for the respondent.
2. Rule. Rule made returnable forthwith.
3. The appellants in the present appeals challenged the judgment
3 jg.ao7,15 & 16.16.odt
and order passed by the learned District Judge, Akot in Regular Civil Appeal
Nos. 13/2010, 14/2010 and 2/2011 dated 30-10-2015.
4. The respondent - plaintiff filed Regular Civil Suit Nos.
158/1998, 180/1998 and 27/1999 before the learned Civil Judge Junior
Division, Akot alleging that the appellants herein and the defendants before
the learned Civil Judge Junior Division were encroachers and prayed for
removal of encroachment, possession and damages and mesne profit. The
suit was contested by the present appellants by submitting that they were
not the encroachers over the land but the property was purchased by them.
The application was submitted before the Tahsildar/Inspector of Land
Records by the respondent - plaintiff for measurement of the suit property.
The plaintiff being dissatisfied for the measurement of T.I.L.R. applied for
Nimtana measurement. The Nimtana measurement held that the appellants
have encroached over the property of the respondent. The learned Civil
Judge Junior Division, Akot, relying on the measurement report, decreed the
suit in favour of the plaintiff. Being aggrieved by the judgment and order
passed by the learned Civil Judge, Akot, appeals were preferred before the
learned District Judge, Akot. By common judgment and order dated
30-10-2015, the appeals were partly allowed. Learned District Judge set
aside the judgment and decree passed by learned Civil Judge Junior Division,
Akot and remitted the matters back to the learned trial Court with directions,
4 jg.ao7,15 & 16.16.odt
namely :
(A) To appoint cadestal surveyor as Court Commissioner and
remeasurement of the properties,
(B) to decide the suit expeditiously.
(C) Learned Trial Court to permit to adduce additional evidence if advised
as permissible in law on point of such additional measurement only.
(D) Initially, the defendants to bear the cost of measurement and the
learned trial Court to consider the apportionment of such expenses at the
time of final decree. If the costs are not paid, necessary inference can be
drawn by the learned Trial Court.
(E) Parties to appear before the learned Trial Court on 1-12-2015.
5. Learned counsel Shri Dhande and Shri Bhise appearing for the
appellants respectively submitted that the appellants are aggrieved only
in respect of the clause (D) of the judgment and order passed by the
learned District Judge - 1, Akot. It was the submission of learned counsel
Shri Dhande that by clause (D), the learned District Judge directed the
defendants to bear the costs of measurement and further observed that if the
costs are not paid, necessary inference can be drawn by the learned trial
Court and this direction is against the provisions of law, namely, the Order
XXVI Rule 15 of the Code of Civil Procedure and is clearly unsustainable.
Shri Dhande, learned counsel in support of his submissions, placed reliance
5 jg.ao7,15 & 16.16.odt
on certain judgments. Shri Dhande submitted that while remitting the
matter back to the learned trial Court observing that the Commissioner is
required to be appointed for measurement of the lands, the learned District
Judge only on consideration of the fact that the plaintiff has carried out the
exercise of measurement earlier, held that it would be appropriate for the
defendants to put the burden of bearing the costs of measurement on
the appellants-defendants by clause (D) of judgment and order dated
30-10-2015.
6. Per contra, Shri Kavimandan, learned counsel for the respondent
(original plaintiff) submitted that the judgment and order passed by the
learned District Judge, Akot and more particularly, clause (D) of the
judgment and order which is challenged by the appellants is just and proper.
Shri Kavimandan further submitted that under Order XXVI Rule 15 of the
Code of Civil Procedure, the learned Civil Court enjoys the discretionary
powers and by exercising those powers, the learned District Judge directed
the appellants-defendants to bear the costs of measurement. Learned
counsel Shri Kavimandan placed reliance on the judgments reported in (1)
AIR 1957 SC 912(1) in the case of State of U.P. Vs. Manbodhan Lal
Srivastava and (2) AIR 1927 Calcutta 907 in the case of Nripendra
Bhusan Roy and ors. Vs. Raja Pramatha Bhusan Deb Ray.
7. The controversy involved in the present appeals is limited one, it
6 jg.ao7,15 & 16.16.odt
would not be necessary to refer the facts in detail on the backdrop of the
controversy involved in the present appeals. It would suffice to refer to the
certain relevant facts. The respondent - plaintiff filed the suit alleging that
the appellants - defendants were encroachers and prayed for possession,
removal of encroachment, possession of suit field and mesne profit. The
appellants have denied the allegations that they were encroachers and it was
the stand of the appellants that suit field was purchased by them from one
Ashok Fokmare and were the owner of the land. It was submitted by the
appellants that the Nimtana Measurement on which the plaintiff was relying
on, was conducted without issuing notice to the appellants.
8. In view of the rival submissions of the learned counsel and on
the backdrop of the controversy involved in the present appeal, it would be
necessary to refer to the relevant provision, namely, Order XXVI Rule 15 of
the Code of Civil Procedure.
15. Expenses of Commission to be paid into Court : -
Before issuing any commission under this Order, the Court
may order such sum (if any) as it thinks reasonable for the
expenses of the commission to be, within a time to be fixed,
paid into Court by the party at whose instance or for whose
benefit the commission is issued.
The submission of Shri Dhande, learned counsel for the appellants is the
learned District Judge while directing the appellants-defendants in the
suit to bear the costs of measurement failed to consider the provisions of
7 jg.ao7,15 & 16.16.odt
Order XXVI Rule 15. Shri Dhande submitted that the material words of the
said provision are "paid into Court by the party at whose instance or for
whose benefit the commission is issued". Shri Dhande, learned counsel
submitted that the appellate Court though suo motu directed the re-
measurement of the suit filed of the properties by appointing cadestal
suveyor, such exercise would be beneficial for the respondent-plaintiff.
Shri Dhande, learned counsel submitted that the respondent had approached
the learned Civil Judge Junior Division, Akot alleging that the appellants
herein (defendants before the Civil Court) are the encroachers. The
respondent ought to have prayed for measurement of the property to
establish his claim. Shri Dhande submitted that though the respondent-
plaintiff initially filed an application before the Taluka Inspector of Land
Records for measurement and the measurement was not in favour of the
respondent-plaintiff, he applied for Nimtana measurement. While
conducting the measurement by the concerned authority undertaking the
Nimtana measurement, no notice was issued to the appellants, as such, the
appellants objected the Nimtana measurement. Shri Dhande, learned
counsel submitted that the learned District Judge, considering the
erroneous Nimtana measurement by observing that no notice was issued
to the appellants, held that the learned trial Court committed mistake.
Shri Dhande, learned counsel by inviting my attention to the judgment and
8 jg.ao7,15 & 16.16.odt
order of the learned District Judge also submitted that the appellate
Court i.e. the learned District Judge while considering the oral evidence of
the witnesses who had conducted the measurement observed that a serious
doubt was created about the measurement conducted by the concerned
officer. Shri Dhande further submitted that the learned District Judge also
observed that the appellants-defendants were repeatedly making demand
for giving them proper opportunity to remain present at the time of re-
measurement and it would have been appropriate for the trial Court to have
granted opportunity to the appellants-defendants to show that the
measurement was carried out without notice to them. Thus, it was
submitted by Shri Dhande that the direction of the learned District Judge for
re-measurement of the land by appointing cadestal surveyor would be only
beneficial to the respondent-plaintiff. Reliance was placed on the judgment
of this Court reported in 2009(5) Mh. L. J. 279 in the matter of Vijay
Shrawan Shende and ors. Vs. State of Maharashtra and ors. It was
submitted that as this Court in the judgment of Vijay Shrawan Shende and
ors. Vs. State of Maharashtra and ors. observed that the fact finding as to
fact and extent of encroachment can be done only when inspection and
measurement are carried out by appointment of an expert Commissioner.
This Court in the case of Vijay Shrawan Shende and ors. Vs. State of
Maharashtra and ors. directed that the costs of the Commissioner shall be
9 jg.ao7,15 & 16.16.odt
born by the appellants i.e. original plaintiffs. Shri Dhande, learned counsel
has placed reliance on the following judgments.
(1) 1963 AIR (Pat) 213 in the case of Anoora Vs. Babu Sagarmal and anr.
(2) 1956 AIR (Travancore-Cochin) 260 in the case of Asanand Nanak
Chand Aggarval Vs. C. A. Ayyathurai,
(3) 1958 AIR (Madhya Pradesh) 340 in the case of Rambux Ramnath
Maheshwari Vs. Madanlal Bhikalal and
(4) AIR 1976 Patna 293 in the case of Jadubir Chaudhary and ors. Vs.
Sumangali Devi and ors.
9. Shri Kavimandan, learned counsel for the respondent placed
reliance on the judgment of the Supreme Court in the case of State of U.P.
Vs. Manbodhan Lal Srivastava reported in AIR 1957 SC 912(1) and
submitted that in Order XXVI Rule 15, the word 'may' is used and in view of
the word 'may' referred to in Order XXVI Rule 15, the appellate Court was
exercising the discretionary powers. It was submitted by Shri Kavimandan,
learned counsel that the appellants are not put to any prejudice. The
learned District Judge directed initially to bear the costs of the
measurement by the defendants and directed that the learned trial Court to
consider the apportionment of such expenses at the time of final decree.
Shri Kavimandan placed reliance on the judgment in the matter of
10 jg.ao7,15 & 16.16.odt
Nripendra Bhusan Roy and ors. Vs. Raja Pramatha Bhusan Deb Ray
(cited supra) and submitted that it was observed in the judgment that by
Order XXVI Rule 15, the Court is not prevented from making any terms that
it chooses as a condition precedent to the granting of the prayer for local
investigation and the Rule 15 only provides that the Court may, if it thinks
fit, the party requiring investigation should deposit the necessary expenses
for the investigation.
10. Considering the material placed on record, I find considerable
merit in the submissions of learned counsel Shri Dhande and Shri Bhise
appearing for the appellants. As stated above, it is the respondent in the
present appeals and plaintiff before the trial Court who was alleging
encroachment over the suit property at the instance of the present appellants
i.e. the defendants in the suit, the learned appellate Court found that the
appellants were objecting the Nimtana measurement on the ground that no
opportunity was granted to them. The appellate Court on the appreciation
of the documentary and oral evidence observed that a serious doubt was
created in the Nimtana measurement undertaken by the concerned authority
and the concerned authority admitted in the cross-examination that after
measurement, no field of Santosh Avdhut (i.e. appellant in Appeal Against
Order No. 7/2016) remains. On these aspects, the learned District Judge
allowed the appeals partly and directed the remand of the matters back to
11 jg.ao7,15 & 16.16.odt
the learned trial Court with directions. Shri Dhande, learned counsel for the
appellants was justified in placing reliance on the judgment of this Court in
the case of Vijay Shrawan Shende and ors. Vs. State of Maharashtra and
ors. (cited supra) by submitting that this Court while directing the
measurement through the Court Commissioner directed that the costs of the
Commissioner shall be born by the original plaintiffs. He was also justified
in placing reliance on the judgment in the case of Asanand Nanak Chand
Aggarval Vs. C. A. Ayyathurai (cited supra) by submitting that considering
the judgment of the Bombay High Court in the matter of Kanji Karsondas
Vs. Nathubhai reported in AIR 1953 Bom 390, High Court directed the
plaintiff to bear the expenses of Court Commissioner for measurement. A
similar view was taken in the matter of Rambux Ramnath Maheshwari Vs.
Madanlal Bhikalal (cited supra). Shri Dhande, learned counsel was also
justified in submitting that the clause (D) of the order of the learned District
Judge is also unsustainable on the ground that the learned District Judge by
observing that if the costs are not paid, necessary inference can be drawn
by the learned trial Court. Shri Dhande, learned counsel submitted that this
observation lead to permitting the trial Court to draw adverse inference
against the appellants if they failed to deposit the costs as directed by the
learned District Judge. Shri Dhande, learned counsel relied on the judgment
of Patna High Court in the case of Jadubir Chaudhary and ors. Vs.
12 jg.ao7,15 & 16.16.odt
Sumangali Devi and ors.(cited supra). It would be useful to refer to the
relevant observations of the Patna High Court on the backdrop of the
provision of Order XXVI Rule 15
5. The main question in this appeal is whether the trial
Court could have directed for striking off the defence on the
ground of non-payment of the Commissioner's fee. The
appointment of the Commissioner was made under the
provisions of Order 26 of the CPC and Rule 15 thereof is in
the following terms :
"Rule 15. Before issuing any commission under this
Order, the Court may order such sum (if any) as it thinks
reasonable for the expenses of the commission to be, within a
time to be fixed, paid into Court by the party at whose
instance or for whose benefit the commission is issued."
Although the rule enjoins that the order in regard to
payment of expenses of the commission should be made before
issuing the commission, it must be held that on a final
accounting, the court has authority to direct the party
concerned to deposit additional costs. But the question is as
to whether the court can strike off the defence on the failure
of such deposit. There has been some controversy on the
question whether the order for deposit of the commissioner's
fee is executable. It is true that the Commissioner, in whose
favour such an order is passed, is not a party to the suit and,
therefore, cannot be a party to the decree in the suit and, for
that reason, it has to be held that the order does not amount
to a decree. But Section 36 of the CPC states that the
provisions of the Code relating to the execution of a decree
shall, so far they are applicable, be deemed to apply to the
execution of orders. I am, therefore, of the view that the
direction of the court in regard to the deposit of the
Commissioner's fee is executable. The remedy of the
Commissioner was, therefore, by way of execution.
6. The striking off the defence and holding an ex parte
trial are serious matters which prejudice the defendants
adversely, affecting the results of the litigation and are clearly
penal in nature. The court is basically interested in finding
13 jg.ao7,15 & 16.16.odt
the truth in a case and giving its judgment, as far as it may
be possible, in accordance with merits, and for that end, a
certain procedure has to be followed for holding the trial.
The CPC has been enacted for that purpose laying down rules,
inter alia, for production of evidence. Certain duties have
been cast on the parties in this regard and if a party does not
discharge his responsibility in regard to a particular piece of
evidence, ordinarily the consequence should be the exclusion
of such evidence, if it is in favour of that party, or drawing of
an appropriate adverse inference against him. It would not
be fair to decide the case itself against the defaulting party.
Unless, therefore, the law expressly provides, the court should
not pass a more rigorous and far reaching order than
necessary in the situation. In the matter of appointment of a
Commissioner, it is true that the Commissioner's fee ought to
be paid by the party at whose instance the appointment is
made, but as I have indicated above, the amount can be
realised by execution. Besides, the court is entitled to exclude
the Commissioner's report from consideration, although it
would not be bound to do so. But no provision of the Code
has been placed before us authorising the court to pass an
order more severe in nature. The provisions regarding ex
parte hearing are included in Rule 6 of Order 9 of the CPC
but only if the defendant does not appear in spite of service of
summons when the suit is called on for hearing. In such a
situation, no alternative is left but to proceed with the trial ex
parte. Order 9 also provides for dismissal of the suit in
certain conditions which fully justify such a course. The only
provision in the Code which appears to be relevant in regard
to the payment of Commissioner's fee is in Rule 15 of Order
26 which does not authorise the court to pass an order
similar to the one passed in the present case. .....
11. Though learned counsel Shri Kavimandan made an attempt to
support the order and clause (D) of the order challenged by the appellants
by relying on the judgment of the Apex Court in the case of State of U.P. Vs.
Manbodhan Lal Srivastava (cited supra), I am unable to accept the
14 jg.ao7,15 & 16.16.odt
submissions of Shri Kavimandan. Though there cannot be any dispute on the
proposition of law as reflected in the judgment of the Apex Court in the case
of State of U.P. Vs. Manbodhan Lal Srivastava (cited supra), the discretion
to be used by the Court under Order XXVI Rule 15 is guided by the words
"by the party at whose instance or for whose benefit the commission is
issued." There is merit in the submission of Shri Dhande, learned counsel
that the exercise of re-measurement of the suit property on the backdrop of
allegations of the respondent-plaintiff that the appellants have encroached
over the property would be beneficial to the respondent-plaintiff and as such,
the words "for whose benefit the commission is issued" would come in play.
The reliance placed on by learned counsel Shri Kavimandan in the case of
Nripendra Bhusan Roy and ors. Vs. Raja Pramatha Bhusan Deb Ray
(cited supra) would of no assistance to Shri Kavimandan in view of the fact
that in that matter, the defendant was continuously seeking adjournments in
contesting the claim of the plaintiff. Then the defendant filed an application
for investigation and the learned subordinate Judge was not satisfied with
the bonafides for filing application seeking local investigation and passed the
order that if the defendant want to do the local investigation/enquiry, he
must deposit the amount of the claim and the plaintiff will be able to
withdraw ¾th of the amount before decree. Considering the challenge to the
order passed by the learned subordinate Judge, the Calcutta High Court
15 jg.ao7,15 & 16.16.odt
observed that "looking at the facts of the case, it seems to us that the
conditions imposed are really not unreasonable." On the background of
these peculiar facts, the Calcutta High Court observed that the Order XXVI
Rule 15 does not prevent the Court, if it thinks fit, from making any terms
that it chooses as a condition precedent to the granting of the prayer for local
investigation. On the backdrop of these facts, in my opinion, the judgment
of the Calcutta High Court would be of no assistance to Shri Kavimandan,
learned counsel for the respondent.
12. Considering all the above referred facts, in my opinion, there is
merit in the submissions of the Shri Dhande and Shri Bhise, learned counsel
for the appellants. In the result, the appeals are allowed.
The condition no. (D) in the order dated 30-10-2015 is set aside by
substituting that the plaintiffs to bear the cost of measurement and the trial
Court to consider the apportionment of such expenses at the time of final
decree.
JUDGE
wasnik
