Madhya Pradesh High Court
Randhir Singh vs Shriram Lodhi on 14 October, 2024
Author: Anil Verma
Bench: Anil Verma
NEUTRAL CITATION NO. 2024:MPHC-GWL:17736
1 MP-5466-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 14th OF OCTOBER, 2024
MISC. PETITION No. 5466 of 2024
RANDHIR SINGH
Versus
SHRIRAM LODHI AND OTHERS
Appearance:
Shri Pavan Singh Raghuwanshi - Advocate for the petitioner.
Shri Abhishek Singh Bhadauria - Advocate for the respondent No.1.
Shri S.S. Kushwah - Advocate for respondent No.2/State.
WITH
MISC. PETITION No. 5468 of 2024
RANDHIR SINGH
Versus
SHRIRAM LODHI AND OTHERS
Appearance:
Shri Pavan Singh Raghuwanshi - Advocate for the petitioner.
Shri Abhishek Singh Bhadauria - Advocate for the respondent
No.1.
Shri S.S. Kushwah - Advocate for respondent No.2/State.
ORDER
As the same controversy is involved in both the petitions, therefore,
they are being decided by this common order
2. Both the miscellaneous petitions under Article 227 of the
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Constitution of India are preferred by the petitioner against the impugned
order dated 28.8.2024 passed by 4th District Judge, Vidisha in MCA
No.07/2023 whereby miscellaneous civil appeal preferred by respondent
No.1/plaintiff under Order 43 Rule 1(r) of CPC has been allowed setting
aside the order passed by the Trial Court dated 21.12.2021 whereby
application filed by respondent No.1/plaintiff under Order 39 Rule 1 and 2 of
CPC has been rejected.
3. Brief facts of the case are that respondent No.1/plaintiff filed a civil
suit against the petitioner/defendant No.1 seeking relief of permanent
injunction. Along-with the plaint, plaintiff/respondent No.1 filed an
application under Order 39 Rule 1 and 2 of CPC and the same has been
dismissed by 5th Civil Judge (Junior Division), Vidisha vide order dated
21.12.2021. Thereafter respondent No.1/plaintiff preferred a miscellaneous
civil appeal under Order 43 Rule 1(r) of CPC and after hearing both the
parties the First Appellate Court vide Annexure P/1 has allowed the
miscellaneous civil appeal setting aside the order passed by learned Trial
Court and further remanded the matter to the Trial Court to decide the
application of temporary injunction after appointing a Local Commissioner
under Order 26 Rule 9 of CPC. Being aggrieved, petitioner has preferred
both the petitions.
4. Learned counsel for the petitioner contended that the impugned
order passed by the First Appellate Court is illegal, perverse and against the
interest of justice. The Trial Court has not committed any error of law in
refusing relief of temporary injunction in favour of plaintiff. Scope of
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jurisdiction is limited to the extent only adjudicating whether the order
passed by the Trial Court under Order 39 Rule 1 and 2 of CPC is beyond
three principles of adjudication of temporary injunction but the Appellate
Court has stepped further and adjudicated the matter after allowing the
application under Order 26 Rule 9 of CPC. Such order of remand is beyond
the scope of Order 43 Rule 1 of CPC because miscellaneous appeal is not
continuity of a suit unlike the regular appeal and issue of Commission for
collecting the evidence regarding suit premises, cannot be permissible in the
eye of law, hence, he prays that the impugned order be set aside.
5. Learned counsel for the petitioner placed reliance upon the
judgment passed by the Supreme Court in the case of Mohd. Mehtab Khan &
Ors. vs. Khushnuma Ibrahim Khan & Ors. reported in (2013) 9 SCC 221 ,
judgments passed by Principal Seat of this Court in the cases of Omprakash
Agrawal & Ors. vs. Sandeep Kumar Agrawal & Anr. reported in 2022 (4)
MPLJ 327 and Ashok Kumar Patel & Ors. vs. Ram Niranjan Dubey & Ors.
reported in 2007(3) MPHT 419 .
6. Per contra, learned counsel for the respondent/plaintiff opposes the
prayer and prays for its rejection by supporting the impugned order passed
by the First Appellate Court.
7. Both the parties are heard at length and perused the documents filed
by the petitioner.
8. The first point raised by petitioner is that power under Order 26
Rule 9 CPC cannot be exercised at the initial stage of suit. A plain reading of
said provision shows that it does not indicate any stage in which such power
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can be exercised. In the case of Rajesh Kumar Gautam v. M.M.V.C. Ashram
reported in AIR 2004 Uttaranchal 30 , the High Court opined that the Court
can appoint a Commissioner at any stage of the proceeding. In the case of R.
Narasimhaiah Vs. Sakammanamma reported in 2001 AIHC 88 (Kar) , it has
been held that an application for issuance of Commission cannot be rejected
merely because evidence is yet to commence.
9. The Rajasthan High Court in Nandlal & Ors. vs. Purshottam & Ors.
(AIR 1988 Raj 26) has observed that there is no restriction in exercising
power by the Court under Section 151 CPC while hearing an appeal. The
basic purpose to exercise power under Order 26 Rule 9 CPC is to separate
the wheat from chaff and in cases where it is necessary to elucidate the
relevant facts, the Court can exercise its power. It must be remembered that
the procedural law is made to advance the cause of justice and not to
strangulate the litigant on hyper technical grounds.
10. In the case of Dataram Singh & Ors. v. Brindawan Singh &
Ors. reported in AIR 2016 (NOC) 35 (M.P.) , the Co-ordinate Bench of this
Court opined as under:
"10.. This is settled in law that all the rules of procedure are the
handmaid of justice. The Apex Court in AIR 1955 SC 425
(Sangram Singh vs. Election Tribunal, Kotah) opined that a code
of procedure must be regarded as such. It is "procedure",
something designed to facilitate justice and further its ends: not a
penal enactment for punishment and penalties; not a thing
designed to trip people up. Too technical a construction of
sections that leaves no room for reasonable elasticity of
interpretation should therefore be guarded against. The Apex
Court in 1975 (1) SCC 774: (AIR 1975 SC 1185): Sushil Kumar
Sen vs. State of Bihar opined that the mortality of justice at the
hands of law troubles a judge's conscience and points an angry
interrogation at the reformer. The processual law so dominates in
certain systems as to overpower substantive rights and substantial
justice. The humanist rule that procedure should be the handmaid,
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not the mistress, of legal justice compels consideration of vesting
a residuary power in judges to act ex debito justitiae where the
tragic sequel otherwise would be wholly inequitable. Justice is the
goal of jurisprudence - processual, as much as substantive. In
(1976) 1 SCC 719 (AIR 1976 SC 1177); State of Punjab vs.
Shamlal Murari, the Apex Court held that processual law is not to
be a tyrant but a servant, not an obstruction but an aid to justice.
Procedural prescriptions are the handmaid and not the mistress, a
lubricant, not a resistant in the administration of justice. In (1984)
3 SCC 46 (AIR 1984 SC 1004); Ghanshyam Dass vs. Dominion
of India the Apex Court reiterated the need for interpreting a part
of the adjective law dealing with procedure alone in such a
manner as to subserve and advance the cause of justice rathar than
to defeat it as all the laws of procedure are based on this principle.
In (2005) 4 SCC 480; (AIR 2005 SC 2441), Kailash Vs. Nanhku
and others the Apex Court held that the provisions of Civil
Procedure Code or any other procedural enactment ought not to be
construed in a manner which would leave the Court helpless to
meet extraordinary situations in the ends of justice. "
[Emphasis Supplied]
11. I find substance in the argument of learned counsel for the plaintiff
that the provisions contained in Order 41, Rules 23, 23-A and 25 of CPC can
be pressed into service while hearing an appeal filed under Order 43 Rule
1(u) CPC where a decree is called in question. The said restriction cannot be
injected for a Misc. Appeal filed under Order 43 Rule 1(r) of CPC. Hence, I
am unable to hold that as per judgment of Nandlal (supra), the Appellate
Court did not have jurisdiction/competence to issue directions for
appointment of Commissioner.
12. Co-ordinate Bench of this Court in the case of Smt. Uma Bhardwaj
vs. Maniram & Ors. (M.P.No.3535/2018) order dated 29.11.2023 held as
under:
"14. In fact trial Court can appoint Commissioner without
application being preferred by the parties therefore, trial Court in
such facts and circumstances where dispute is in respect of
encroachment/demarcation/boundary dispute etc. must appoint
Commissioner/Revenue Officer for obtaining commission report."
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13. Co-ordinate Bench of this Court in the case of Ramnath & Ors. vs.
Raghunath Singh & Ors. (M.P.No.4329/2023) order dated 1.9.2023 held as
under:
"20. Therefore, considering the provisions of Orders XLI, XLIII
and Section 108 of CPC as well as different pronouncements made
in this regard, it appears that the provision of Order XLI of CPC
would apply in Order XLIII of CPC also to the extent where
remand is made."
14. In the cumulative analysis, I find no basis to interfere in the matter.
Parties are directed to appear before the Trial Court on the next date of
hearing and the Trial Court shall decide the application preferred by the
plaintiff and opponent analogously in accordance with law.
15. Impugned order passed by First Appellate Court is hereby
affirmed.
16. Both the petitions stand disposed of in above terms.
17. A copy of this order be kept in the connected case.
(ANIL VERMA)
JUDGE
(alok)
