Prashant Projects(P) Ltd. vs Indian Oil Corpn. Ltd.
2011 Latest Caselaw 1040 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     FAO(OS) No.53-54/2011

PRASHANT PROJECTS(P) LTD.           ....Appellant through
                                    Mr. Ramji Srinivasan, Sr.
                                    Adv. with Mr. Vikram
                                    Mehta, Mr. Kush
                                    Chaturvedi and Mr. Zeyaul
                                    Haque, Advs.

                    versus

INDIAN OIL CORPN. LTD.              .....Respondent through
                                    Mr. A.S. Chandhiok, Sr.
                                    Adv. with Ms. Mona Aneja,
                                    Mr.Bhagat Singh and
                                    Ms. Snigdha Sharma, Advs.

%                        Date of Hearing : January 31, 2011

                         Date of Decision : February 22, 2011

      CORAM:
*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN
      HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
      1. Whether reporters of local papers may be
         allowed to see the Judgment?             No
      2. To be referred to the Reporter or not?   Yes
      3. Whether the Judgment should be reported
         in the Digest?                           Yes

VIKRAMAJIT SEN, J.

CM No.2084/2011

1. Allowed, subject to all just exceptions.

FAO(OS) No.53-54/2011

2. This Appeal has been filed under Section 10 of the Delhi

High Court Act, 1966 (DHC Act for short) against the Order

passed by the learned Single Judge on 21.1.2011 dismissing

the Plaintiff‟s application under Order XXVI Rule 9 of the

Code of Civil Procedure, 1908 (CPC for short) praying for the

appointment of a Local Commissioner for carrying out

measurement of the work done by the Plaintiff.

3. We have summoned and perused the original

documents, especially because a copy of IA No.17646/2010

under Order XXVI Rule 9 of the CPC appears not to have

been placed on record. In the said application, there is no

mention of the fact that a joint inspection of the Project had

been carried out and/or that the Defendant/Respondent had

not conducted this exercise properly.

4. In the impugned Order, the learned Single Judge has

dismissed the application opining that "the appropriate

course for the Plaintiff would be to get the measurement done

at its own level from an expert independent body and for this

purpose, the Local Commissioner is not required to be

appointed". It had been contended before the learned Single

Judge, and reiterated before us by Mr. A.S. Chandhiok,

learned Additional Solicitor General that the intent behind

the application is the Plaintiff/Appellant‟s endeavour to

wriggle out of joint measurement which has been carried out

on 10.11.2010. In this regard, it has been emphasized that no

objection in respect of the carrying out of the joint

measurement has been articulated in the Plaintiff‟s

letter/notice dated 12.11.2010.

5. At the very threshold, the learned ASG has raised an

objection as to the maintainability of the present Appeal

under Section 10 of the DHC Act. Nevertheless, he has again

offered that the Respondent would have no objection to the

Plaintiff/Appellant carrying out measurement of the work

allegedly executed by it. The learned ASG has submitted that

the Plaintiff only needs to indicate the date on which this

exercise is to be embarked upon. Mr. Ramji Srinivasan,

learned Senior Counsel for the Appellant, however, has

roundly rejected the offer contending that a Local

Commissioner ought to have been appointed for the purpose.

6. So far as the maintainability of the Appeal under

Section 10 of the DHC Act is concerned, we must refer to

Shah Babulal Khimji -vs- Jayaben D. Kania, (1981) 4 SCC 8.

The High Court of Delhi was constituted under the DHC Act.

While Letters Patent applied to the Punjab High Court, which

earlier held territorial sway, technically it was not the

precursor of the Delhi High Court. This aspect of curial

annals has been fully unraveled by a decision of a

Constitution Bench of five learned Judges of this Court in

University of Delhi -vs- Hafiz Mohd. Said, AIR 1972 102 :

ILR (1972) Delhi 1, which has been set aside by a brief Order

of two paragraphs on the premise that it was irreconcilable

with the enunciation of the law contained in Khimji. We may

emphasise, at the risk of repetition, that Khimji deals with

the maintainability of a Letters Patent Appeal. We, however,

must assume, because of the pronouncement in Jugal

Kishore Paliwal -vs- S. Sat Jit Singh, (1984) 1 SCC 358,

which has overruled Hafiz Mohd. Said, that Section 10 of

the DHC Act is in pari materia in content and effect with

Letters Patent. We can only conjecturise that the disparate

nature of the Delhi High Court when compared to chartered

High Courts, such as in Punjab, Bombay etc., was not brought

to the notice of their Lordships by the Advocates in Jugal

Kishore Paliwal. We are sanguine that if this aspect is

revisited by the Supreme Court, a different conclusion may be

pronounced with regard to the High Courts which have not

emerged from Chartered High Courts. To avoid prolixity, we

shall merely refer to a Division Bench decision in Wee Aar

Constructive Builders -vs- Simplex Concrete Piles (India)

Ltd., 2010 II AD (Delhi) 382 where a more detailed

consideration of this conundrum was considered.

7. Mr. Ramji Srinivasan has confined his arguments, so far

as maintainability of the Appeal is concerned, within the four

corners of Khimji. Their Lordships had, inter alia, concluded

that the Judgment "must be a formal adjudication which

conclusively determines the rights of parties with regard to

all or any of the matters in controversy. ...... The intention,

therefore, of the givers of the Letters Patent was that the

word „judgment‟ should receive a much wider and more

liberal interpretation than the word „judgment‟ used in the

Code of Civil Procedure". The Supreme Court also noted that

"the interlocutory orders which contain the quality of finality

are clearly specified in clauses (a) to (w) of Order 43 Rule 1

and have already been held by us to be judgments within the

meaning of the Letters Patent and, therefore, appealable".

Thereafter, it has been stated in paragraph 115 that "those

orders would be judgments which decide matters of moment

or affect vital and valuable rights of the parties and which

work serious injustice to the party concerned. Similarly,

orders passed by the Trial Judge deciding question of

admissibility or relevancy of a document also cannot be

treated as judgments because the grievance on this score can

be corrected by the appellate court in appeal against the final

judgment." In paragraph 119, their Lordships have amplified

this aspect of the law in these words:-

119. Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court:

(1) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice to one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.

(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in

controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings. (3) The tests laid down by Sir White, C.J. as also by Sir Couch, C.J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind.

8. In paragraph 120 of Khimji, rejection of an application

for appointment of a Local Commissioner does not find place

in the itemization of order amenable to an appeal.

9. Letters Patent was issued at a time when India was a

colony of the British Empire and redressal against an order

passed by a Single Judge/Trial Judge was available only

before the Judicial Committee or the Privy Council. This

entailed not only huge financial expense, but also required

considerable discomfort of involving months of travel. If

Parliament perceives it to be prudent to provide for an intra

court appeal in independent India, so far as Delhi High Court

is concerned, the needful can be achieved by an amendment

in the DHC Act. Citizens should not be required to seek

succor from archaic laws.

10. We shall now consider the contention of the Respondent

that the real purpose behind the subject application is to

nullify the joint inspection carried out by the parties. The

sequence of events which we find relevant is that by letter

dated 8.10.2010, stated by Mr. Ramji Srinivasan to actually

have been issued the following month, it had informed the

Defendants that they had "in terms of the termination order

deputed our engineers to carry out the measurements. We

request that the measurements for work carried out be taken

physically. We also request you while taking the

measurement, kindly jointly record the contractor supplied

materials as well as the works done on this same". That this

joint measurement had been carried out on 8.11.2010 has

been admitted by the Appellant in paragraph 42 of the Plaint

even though thereafter it has been pleaded that it was only in

respect of a small part of the work done by the Plaintiff. The

learned ASG, however, has emphasized that it was the first

time that any grievance or umbrage had been recorded, so

far as the exercise of joint measurement is concerned, was in

the aforementioned pleadings. Our attention has also been

drawn to the fact that the entire documentation has not been

filed.

11. It seems to us that there is a force in the argument

raised on behalf of the Respondent that the strategy behind

the application is not the carrying out of measurement but

rather diluting or defeating the veracity of the joint

measurement. So far as we are concerned, the Plaintiff‟s

refusal to carry out inspection/measurement by its own

engineers is indicative that the purpose behind the

application for appointment of a Local Commissioner is

oblique and malafide. It is also relevant to reflect that the

carrying out of measurement may not be the only method by

which the Plaintiff could prove the extent of the work carried

out by it. Surely, it must also possess sufficient

documentation of its own, showing deployment of manpower

and utilization of material and resources at the relevant site.

All this will, no doubt, be dealt with in detail in the arbitration

proceedings. Therefore, assuming that the present Appeal is

maintainable, we find that it is devoid of merit.

12. In this view of the matter, no useful purpose will be

served by a detailed consideration of the decisions of the

learned Single Benches in Chintapatla Arvind Babu -vs- Smt.

K. Balakristamma, AIR 1992 AP 300 and T.V. Balan -vs-

University of Calicut, AIR 1996 Kerala 278, to which our

attention has been drawn by Mr. Ramji Srinivasan. These are

also our view with regard to the Division Bench Judgment of

this Court in Prima Developers -vs- Lords Cooperative Group

Housing Society Ltd., 159(2009) DLT 586(DB). The Court

indubitably possesses powers for appointment of a Local

Commissioner, but whether those powers are to be exercised

depends on the peculiarity of the factual matrix obtaining in

the particular instance. It can scarcely be claimed that a

Local Commissioner should be appointed to nullify joint

measurement carried out by the parties, even in the face of

the offer by the Defendant that the Plaintiff may carry out

inspection on its own.

13. Since the matter has been argued at great length, the

Appeal is dismissed with costs of ` 20,000/-.

14. Since the Appeal has been dismissed, CM Nos.2082-

83/2011 are also dismissed.

( VIKRAMAJIT SEN ) JUDGE

( SIDDHARTH MRIDUL ) JUDGE February 22, 2011 tp