Delhi High Court
Sharmila Sengupta And Others vs Deepankar Sen And Others on 24 March, 2022
$~42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 263/2022 & CM APPL. 14406/2022, CM APPL.
14407/2022
SHARMILA SENGUPTA AND OTHERS ..... Petitioners
Through Ms. Shobhana Takiar and Ms.
Indrani Ghosh, Advs.
versus
DEEPANKAR SEN AND OTHERS ..... Respondents
Through Mr. Prosenjeet Banerjee, Ms.
Shreya Singhal and Mr. Yash Dev
Upadhyaya, Advs. for R-2 and 3
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
JUDGMENT (ORAL)
% 24.03.2022
1. The impugned order dated 19th February, 2022, by the learned
Civil Judge, rejects the application preferred by the petitioner, who
was one of the plaintiffs, before the Ld. Civil Judge, under Order
XXVI Rule 9 of the Code of Civil Procedure, 1908 (CPC), which
sought the appointment of a Court Commissioner to conduct the
elections of the Durgabari Society.
2. It is not necessary, in view of what has been observed in para 15
of the impugned order, to enter into the niceties of the disputes
between the parties. Suffice it to state that the parties appear to be at
issue on the strength of the electoral roll, for the purpose of
conducting of the elections. In this context, para 15 of the impugned
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:28.03.2022
18:30:17
order may be reproduced thus:
"15. The parties, are agreeable to appointment of an
independent commissioner (though the plaintiff seeks
appointment for the purpose of conduct of elections and the
defendant for supervising the conduct of elections), however,
are at loggerheads regarding the members who were approved
to be a part of the electoral roll. If this application is to be
allowed, the first and the foremost issue that needs to be
decided by the court, is pertaining to the members of the
electoral roll, which cannot be done at this stage. This issue
can be decided only after trial. A trial before an actual trial
cannot be allowed in the garb of this application."
3. Following the afore-extracted observations in para 15, the
learned Civil Judge has, by the impugned order, dismissed the
application of the petitioner-plaintiff under Order XXVI Rule 9 of the
CPC.
4. Order XXVI Rule 9 of the CPC reads thus:
"
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."
5. It appears, to me, that the learned Civil Judge has unnecessarily
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By:SUNIL SINGH NEGI
Signing Date:28.03.2022
18:30:17
conflated the dispute between the parties regarding the electoral roll,
for the purpose of conducting the election, with the request for
appointment of an independent Court Commissioner to do so. These
two aspects, in my view, are not inter-linked. Undoubtedly, if a court
commissioner is appointed, possibly the elections could be held only
after the dispute regarding electoral roll is finalised. That, however,
cannot be a basis for the court to reject an application for having the
elections conducted by an independent court commissioner, especially
where both parties were agreeable in that regard.
6. In that view of the matter, the decision of the learned Civil
Judge to dismiss the petitioner's application under Order XXVI Rule 9
of the CPC cannot sustain. It is accordingly quashed and set aside.
7. The application is remanded to the learned Civil Judge to
consider the application afresh, regarding the appointment of a Court
Commissioner to conduct the elections, if and as and when they are
conducted.
8. Let this application be listed before the learned trial court on 5th
April, 2022 at 02:00 p.m.
9. Ms. Shobhana Takiar, learned Counsel for the petitioner,
submits that there is no surviving dispute regarding the strength of the
electoral roll, which is strenuously opposed by Mr. Prosenjeet
Banerjee, learned Counsel for Respondents 2 and 3.
10. This Court expresses no view on this aspect, regarding which
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By:SUNIL SINGH NEGI
Signing Date:28.03.2022
18:30:17
the learned Civil Judge would no doubt apply his mind at the
appropriate stage.
11. As a result, this petition stands allowed in the aforesaid terms
and to the aforesaid extent, with no orders as to costs.
C. HARI SHANKAR, J.
MARCH 24, 2022
dsn
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:28.03.2022
18:30:17
