Jharkhand High Court
Hira Lall Ram Aged About 59 Years vs State Of Jharkhand on 16 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 852 of 2023
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1. Hira Lall Ram aged about 59 years.
2. Panna Lall Ram aged about 79 years, both s/o late Jagarnath Ram,
resident of House No. M.R.33/1, Main Road, Ramgarh, P.O. Ramgarh
Cantt, P.S. Ramgarh, District-Ramgarh.
....... Petitioners/Defendants
Versus
1. State of Jharkhand.
2. Nand Kishor Pathak s/o Sri Manohar Pathak, r/o Gola Road, Ramgarh
Cantt, P.O. Ramgarh Cantt, P.S. Ramgarh, District-Ramgarh.
... ...Respondents/Plaintiff
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. Sidhartha Roy, Advocate
For the Resp.-State : Mr. Mihir Kunal Ekka, AC to SC-I
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th
04/Dated: 16 February, 2024
1. The instant writ petition is under Article 227 of the Constitution of India,
whereby and whereunder, the order dated 30.06.2023 passed in Eviction
Suit No.8 of 2008 has been assailed by which the petition filed on
23.09.2019 for appointment of Pleader Commissioner in view of the
provision of Order XXVI Rue 9 read with Section 151 of CPC has been
rejected.
2. The brief facts of the case as per the pleading made in the petition which
requires to be enumerated reads as under:
It is the case of the Respondent / Plaintiff is that the Respondent
/ Plaintiff is landlord of the suit property which is mentioned as
Scheduled "A" in their Plaint. The Petitioners Defendants occupied the
suit premises for their residence and paid rent month to month @
Rs.200/- per month to the Respondent / Plaintiff.
Thereafter, the father of the petitioners / Defendants died
leaving behind the petitioners/ defendants, thereafter a fresh tenancy was
created between the plaintiff and the petitioners / defendants and
accordingly the petitioners / defendants on occupation of the suit
property used to pay house rent to the plaintiff.
The respondent / plaintiff filed an Eviction suit on 09.05.2008
and after receiving of the notice the petitioners / defendants appeared in
this suit and filed written statement on 18.07.2008. After filing of the
written statement and after hearing, the Respondent / Plaintiff amended
their suit vide order dated 17.12.2008 as Plot No. 443 and 444 area 02
decimals and three decimals respectively under Khata No. 298 of Village
Ramgarh.
The state government has given a part of land though Parcha to
the father of the petitioners namely Jagarnath Ravidas under Khata No.
298 Plot No. 446 area 02 decimals vide order dated 15. 05. 1978 passed
by the Anchal Adhikari, Ramgarh in Misc Case No. 14/78-79. Thereafter
the Karmchari (Revenue Collector) issued Parcha to the Jagarnath
Ravidas and he is paying rent to the state Government respectively
which are exhibit A, B, C to C/2 in the Eviction Suit.
After the order of Anchal Adhikari, the Revenue Collector
(Karmchari) has updated name of Jagarnath Ravidas in Register II and
thereafter he became a Raiyat, thereafter Jagarnath Ravidas is paying
rent to the State Government year by year and made a Khaparpos house
and residing with his family peacefully.
The petitioners have filed a petition dated 23.09.2018 u/o XXVI
Rule 9 read with Section 151 of CPC for appointment of Survey
Knowing Pleader Commissioner but the said petition had been dismissed
vide order dated 30.06.2023 which is the subject matter of the present
case.
3. It is evident from the factual aspect that the plaintiff filed a suit for
eviction. The defendant after being called upon has appeared and filed
written statement disputing the pleading made in the plaint, thereafter,
the issue having been framed and at the stage of evidence, petition under
Order XXVI Rule 9 read with Section 151 of CPC was filed for the
purpose of obtaining a report of the Commissioner by way of
demarcation of the land since the ground has been taken about the
aforesaid petition by the petitioner that the land from which the eviction
is being sought for, is not owned by the plaintiff concerned.
The aforesaid petition has been dismissed, therefore, the instant
petition.
4. Mr. Sidhartha Roy, learned counsel for the petitioners has submitted that
petition which was filed under Order XXVI Rule 9 read with Section
151 of CPC has summarily been rejected without taking into
consideration the very object and intent of the insertion of the aforesaid
provision as provided under the CPC.
5. It has been contended that since the area is now being disputed by the
defendants, the petitioners herein, and for the aforesaid purpose and in
order to avoid any misconception regarding the factual aspect of the
subject in question, the petition was filed for demarcation of the land by
invoking the jurisdiction under Order XXVI Rule 9 of CPC but the
learned trial court without taking into consideration the aforesaid aspect
of the matter, has rejected the said petition, therefore, the present
petition.
6. He has relied upon a judgment rendered by the Hon'ble Apex Court in
Haryana Waqf Board vs. Shanti Sarup and Ors., (2008) 8 SCC 671 in
order to fortify his argument by showing the purport of Order XXVI
Rule 9 of CPC.
7. The State is being represented by Mr. Mihir Kunal Ekka, learned AC to
SC-I but it is a formal party.
8. This Court with the consent of the learned counsel for the petitioners is
deciding the issue at this stage by going into the merit and keeping the
fact into consideration regarding the purport of Order XXVI Rule 9 of
CPC. For ready reference, Order XXVI Rule 9 of CPC is being referred
as under:
"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."
9. The issue pertaining to provision of Order XXVI Rule 9 of the C.P.C.
has also fell for consideration before the various High Courts, reference
in this regard may be made to the order passed by the Uttrakhand High
Court in the case of Rajesh Kumar Gautam Vrs. M.M.V.G. Ashram,
reported in AIR 2004 U'Chal 30 (31), wherein, it has been observed that
purpose of getting report from Survey Knowing Commissioner to find
out the present physical possession and the land in dispute and to find
out the actual State of Affairs in between the parties and the appointment
of Survey Knowing Commissioner for that purpose will not bound to
collect the evidence rather it will be elucidated any matter in dispute. Of
course, there is an issue for collecting evidence on behalf of the parties
but there is no bar for explaining the situation and elucidating the
disputed possession of the land, that too in a situation where the parties
are claiming for encroachment of land by other side.
10. In the case of K. Raghunath Rao Vrs. Smt. Tumula Jai Laxmi, reported
in AIR 1988 Orissa 30, the Hon'ble Apex Court has held as under: -
".....Therefore, normally writ is to be issued to a Commissioner for local
investigation to appreciate the evidence already recorded. There may be
departures form the normal rule for issue a commission also. For
illustration: Where evidence is necessary to know the depth of water in a
particular season a commissioner can be deputed even though evidence
has not been recorded. Where it is to be found as to on which plot the
disputed land lies, a writ can be issued to nay person to relay the same
even though no evidence is required if the Court finds that the parties
themselves cannot produce evidence to that effect. Since issue a writ to a
person for local investigation would depend upon the facts and
circumstances of each case, no hard and fast rule can be laid down. This
much can be said that the basic prerequisite for issue of such a writ is the
satisfaction of the Court that a local investigation is requisite or proper.
This satisfaction is to be judicial satisfaction based on reason."
11. Similarly, in the case of Saraswathy Vrs. Viswanathan, reported in 2002
(2) CTC 199, it has been held that object of appointment of
Commissioner is not to collect evidence but to elucidate matter which
are local in character and which can be done only by local investigation
at spot.
12. However, it is equally settled connotation of law that an application for
local investigation cannot be allowed when it is filed after the evidence
is over and the case is at the stage of argument since it is filed only to fill
up the lacuna in the evidence and to fish out evidence.
13. Reference in this regard may be taken from the judgments as rendered in
the case of Tulamaya Chettri Vrs. Younarayan Pradhan, reported in
(2004) 3 CCC 318, wherein at paragraph 4, it has been held as under:
"4.Order 26, Rule 9, CPC authorises the Court to appoint a
commissioner if it considers a local investigation to be requisite or
proper for the purpose of elucidating any matter in dispute, or for other
reasons mentioned therein. The matter is thus left to the discretion of the
Court. The discretion is however a judicial one and not an arbitrary
exercise of the power. The object of such appointment is to obtain
evidence from the spot itself which helps the Court to properly
understand and assess the evidence on record. The report submitted by
the Commissioner is a piece of evidence which has to be considered
along with other evidence on record. In Mahendranath Parida v.
Purnananda Parida, AIR 1988 Orissa 248, Justice R.C. Patnaik (as he
then was) pithily observed as follows (Para 4)
"No doubt, the provision confers a discretion on the Court. But the
discretion, as it is well known, has to be exercised in a judicious and
sound manner but not whimsically and capriciously. What is necessary to
note in the provision is the expression deems a local investigation to be
requisite or proper for the purpose of elucidating any matter in
dispute............' Therefore, where the Court considers a local
investigation to be requisite and proper, ordinarily it should not decline
to exercise jurisdiction. It may decline jurisdiction if the motion is made
at a belated stage, or if the motion is mala fide or in circumstances
justifying refusal. A party has choice and a right to examine a survey
knowing person after getting the identification or measurement privately
done by him. For examining such witness it does not seek any privilege
or indulgence."
(Emphasis supplied)
Ordinarily we would not have interfered with an order appointing an
amin commissioner but in the case at hand parties have closed their
evidence and when the matter was at the stage of arguments the
respondents came up with prayer for appointment of a commissioner.
In view of the admitted fact that parties have already closed their
evidence, acceding to the prayer for appointment of an amin
commissioner at this belated stage would amount to permitting the
respondents to fill up lacunae in their evidence thus leading to a roving
inquiry. A learned single Judge of the Calcutta High Court in Satish
Agarwal v. Tirath Singh, 1996 AIHC 1761 has held that when the matter
awaits arguments, the prayer made by the defendants for local
investigation, if allowed would amount to filling up lacunae in their
evidence and such prayer should not be allowed."
14. Further, the Hon'ble Apex Court in the case of Nazir Hassan Khan Vrs.
A. Rao, reported in AIR 2004 Kant 92 has been held as under:
"2. The learned Judge has pointed out in the order passed that the suit is
of the year 1991. The evidence of the plaintiff was commenced on 4-11-
1996 and the evidence was closed on 22-2-1999. In the course of these
three years, if the plaintiff and the learned Advocate desired that any
Commissioner was necessary or desirable, it was at this point of time
that the application ought to have been made and most certainly before
the plaintiff's evidence was closed. If the application was justified, the
court would have granted it or else it could have been rejected.
Thereafter, the defendant's evidence was taken up and this was also
closed on 19-9-2000 and the order-sheet shows that the case was posted
to 10-10-2000 for arguments. The present application has been filed on
2-11-2000 i.e., three weeks after the trial has reached the stage of finality
and the case was fixed for arguments. To my mind, it is necessary that
all applications of this type even if they are bona fide and genuine,
have to be filed at a proper point of time in the proceedings. This is very
necessary also from the point of view of the stage of the proceedings
because, the learned trial Judge is perfectly right when he pointed out
that if this application were to be entertained, even assuming that was
the position, it would mean that the trial which has reached the
argument stage, would get dilated, evidence will have to be reopened
and all the procedures from that stage onwards would again have to be
re-commenced. The law does not permit such ill-timed applications
which would only have the effect of disrupting the trial and dilating the
proceedings. The Courts have been virtually struggling to ensure that
civil proceedings are heard and disposed of within a reasonable time and
applications of this type only disrupt the proceedings and dilate them.
Under these circumstances, not only was the trial Court fully justified
but, to my mind, the challenge presented through the Civil Revision
Petition to that order is totally misconceived. Having regard to this
position, the Civil Revision Petition is dismissed with costs quantified at
Rs. 1,000/-.
15. This Court, on the aforesaid premise, is now proceeding to examine the
legality and propriety of the impugned order keeping the facts into
consideration, the scope to show interference with the impugned order
which is to be exercised under Article 227 of the Constitution of India.
16. Dealing with the scope of Article 227 of the Constitution of India,
Hon'ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra
Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid
down therein regarding the scope of Article 227 which relates to the
supervisory powers of the High Courts and by taking aid of the judgment
rendered by the Hon'ble Full Bench of Calcutta High Court in the case
of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR
1951 Calcutta 193, wherein it has been laid down that Article 227 of the
Constitution of India does not vest the High Court with limitless power
which may be exercised at the court's discretion to remove the hardship
of particular decisions. The power of superintendence confers power of a
known and well recognized character and should be exercised on those
judicial principles which give it its character. In general words, the High
Court's power of superintendence is a power to keep the subordinate
courts within the bounds of the authority, to see that they do what their
duty requires and that they do it in a legal manner.
17. The power of superintendence is not to be exercised unless there has
been; (a) An unwarranted assumption of jurisdiction, not vested in a
court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable
refusal to exercise jurisdiction vested in courts or tribunals.
18. Further, in the aforesaid judgment the Hon'ble Apex Court has taken aid
of a judgment rendered in the case of Mani Nariman Daruwala Vrs.
Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been
laid down that in exercise of jurisdiction under Article 227, the High
Court can set aside or reverse finding of an inferior court or tribunal only
in a case where there is no evidence or where no reasonable person could
possibly have come to the conclusion which the court or tribunal has
come to.
19. The Hon'ble Apex Court has made it clear that except to this limited
extent the High court has no jurisdiction to interfere with the finding of
facts.
20. Further, the judgment rendered by the Hon'ble Apex Court in the case of
Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh
Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the
High Court under Article 227 cannot assume unlimited prerogative to
correct all species of hardship or wrong decisions. Its exercise must be
restricted to grave dereliction of duty and flagrant abuse of fundamental
principles of law and justice.
21. Now coming to the fact of the case wherein the undisputed fact is that a
suit for eviction has been filed by the plaintiff, the respondent herein,
against the defendant, the petitioners herein. The suit proceeded. The
defendant-petitioner having been called upon by the learned trial court
had appeared and filed written statement thereafter, the issues have been
framed and at the stage of evidence, a petition under Order XXVI Rule 9
of CPC was filed for demarcation of the property as referred in the
Schedule-A to the plaint.
22. The ground has been taken therein that if the demarcation of the
aforesaid property in question will be done by the Commissioner, then
all the misconception/confusion will be sorted out and proper decree will
be passed in the suit.
The said petition had been dismissed by the learned court by
considering the fact that the controversy pertaining to the suit is not the
demarcation of the area rather the controversy, i.e., the core of the suit, is
the eviction of the defendant from the land of the plaintiff.
23. The learned court has also taken into consideration that the said petition
was filed at the stage when the case was fixed for evidence. The learned
court has taken into consideration the details of the property described in
Schedule-A of the plaint and on its perusal the court prima facie has
found that the suit cause situated over the survey plot no.443 and 444
area 2 decimals and 3 decimals respectively under Khata No.298 village
Ramgarh, House No.MR33/1, as such, the learned court has come to the
conclusion that the local investigation is not required for elucidated, the
suit premises through pleader commissioner in the interest of justice. The
aforesaid order is under challenge.
24. This Court has already discussed the very purport of the Order XXVI
Rule 9 of CPC wherein as per the stipulation made in the aforesaid
provision that it is the prerogative of the court to appoint commissioner
if there is any confusion in the mind of the court. The aforesaid provision
has been interpreted by the Hon'ble Apex Court in several judgments as
has been referred hereinabove wherein the view has been taken that the
provision as under Order XXVI Rule 9 of CPC cannot be allowed to be
exercised for the purpose of creating evidence in favour of one or the
other party.
25. The learned counsel for the petitioners has relied upon the judgment
rendered by the Hon'ble Apex Court in Haryana Waqf Board vs. Shanti
Sarup and Ors. (supra).
26. This Court has gone through the content of the factual aspect of the said
case and found therefrom that the core issue involved therein is the
demarcation of the disputed land. The Hon'ble Apex Court by taking into
consideration the purport of Order XXVI Rule 9 of CPC has made an
observation that in order to come to the conclusion regarding the core
issue of demarcation which was the subject matter of the suit, the
Commissioner appointed in view of the provision of Order XXVI Rule 9
of CPC but herein the core issue of the suit is not the demarcation of land
rather it is eviction by giving therein the details of property from the
eviction suit sought for by the plaintiff as under Schedule-A to the plaint.
27. The law is well settled that there is no universal application of a
judgment rather judgment is to be made application governing the facts
of each and every case. Reference in this regard be made to the judgment
rendered by the Hon'ble Apex Court in Dr. Subramanian Swamy vs.
State of Tamil Nadu and Others, (2014) 5 SCC 75, wherein at
paragraph 47 it has been held which reads as under:
"47. It is a settled legal proposition that the ratio of any decision must
be understood in the background of the facts of that case and the case
is only an authority for what it actually decides, and not what
logically follows from it. "The court should not place reliance on
decisions without discussing as to how the factual situation fits in with
the fact situation of the decision on which reliance is placed.""
28. This Court, therefore, is of the view that the judgment upon which the
reliance has been placed by the learned counsel for the petitioners is not
applicable in the facts of the case as has been discussed hereinabove.
29. Coming to the jurisdiction of this Court which is to be exercised under
Article 227 of the Constitution of India as has been discussed that the
same can only be exercised if there is apparent error on the face of record
or there is any jurisdictional error then only the power conferred under
Article 227 of the Constitution of India is to be exercised otherwise not.
30. If in absence of such reason if the court having power under Article 227
of the Constituting will exercise its power, the same will amount to
exercising the power of the appellate court.
31. This Court considering the aforesaid fact and based upon the reason
hereinabove, is of the view that the order impugned needs no
interference.
32. Accordingly, the instant petition stands dismissed.
33. Pending interlocutory application, if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
Saurabh/-
