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2015 Supreme(Cal) 516
IN THE HIGH COURT OF CALCUTTA
Arijit Banerjee, J.
Biswanath Mondal and Others & Sushila Monal - Petitioner
Versus
Mayarani Pal and Others - Opposite Parties
R.V.W. 142 of 2011 in C.O. 1271 of 2008
Decided On : 23-02-2015
For the Petitioner: Anit Kumar Rakshit
For the Opposite Parties : Syed Nasim Aejaz
An appellate court should not interfere with a trial court's order for local investigation unless the order causes real prejudice to the parties or is based on an error of law or procedure.
Headnote:
CIVIL PROCEDURE - LOCAL INVESTIGATION - ORDER 26 RULE 9 - APPOINTMENT OF COMMISSIONER - DISPUTED PASSAGE - EXISTENCE OF PASSAGE NOT RECORDED IN C.R. OR R.S. MAP - SALE DEEDS MENTIONING EXISTENCE OF PASSAGE - REVIEW OF ORDER - GROUNDS - ORDER 47 RULE 1 - ERROR IN NOT CONSIDERING MATERIAL DOCUMENTS - APPELLATE COURT INTERFERENCE - PREJUDICE TO PLAINTIFFS - ENDS OF JUSTICE - RESTORATION OF TRIAL COURT ORDER.
Fact of the Case:
Plaintiffs sought a declaration of easement rights over a disputed passage adjacent to the defendants' property. The trial court initially dismissed the plaintiffs' application for local investigation, finding that the passage was not recorded in the C.R. or R.S. maps and that a commission could not be issued to collect evidence. Upon review, the trial court allowed the plaintiffs' application, considering two sale deeds that mentioned the existence of the passage. The appellate court set aside the trial court's order, holding that the appointment of a Survey Commissioner would create complications and delay the case. The plaintiffs challenged this order in revision.
Finding of the Court:
The High Court held that the trial court was justified in appointing a Survey Commissioner to determine the true state of affairs, as the existence of the disputed passage was a point that would go to the root of the plaintiffs' claim. The court found that the appellate court erred in not considering the two sale deeds, which were extremely material documents, and that this error caused unwarranted prejudice to the plaintiffs. The court restored the trial court's order for local investigation.
Issues: 1. Whether the trial court erred in reviewing its earlier order and appointing a Survey Commissioner for local investigation. 2. Whether the appellate court erred in setting aside the trial court's order without considering material documents.
Ratio Decidendi: 1. The court held that the trial court had the power to review its earlier order under Order 47, Rule 1 of the Code of Civil Procedure, as there was a ground for review, namely, the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by the party seeking review. 2. The court held that the appellate court erred in not considering the two sale deeds, which were extremely material documents, and that this error caused unwarranted prejudice to the plaintiffs. The court found that the appellate court's order was not in the interests of justice and needed to be set aside.
Final Decision: The High Court set aside the appellate court's order and restored the trial court's order for local investigation. The court directed the Commissioner to file his report within one week from the date of communication of the order and stated that the report would be a piece of evidence in the suit, with the weight to be attached to it to be decided by the trial court.
Arijit Banerjee, J.
Supplementary affidavit filed on behalf of the opposite parties be kept on record.
2. The petitioners are the plaintiffs in Title Suit No. 161 of 1994 pending in the court of learned Civil Judge (Junior Division), 2nd Court, Hooghly. The petitioners are the owners of the property described in Schedule 'A' to the plaint. The defendants are the owners of the property described in Schedule 'B' to the plaint. The property described in Schedule 'C' is the alleged pathway lying on the eastern side of the 'B' Schedule property. The plaintiffs have, inter alia, prayed for declaration that they have right by way of easement in respect of the 'C' Schedule property.
3. The defendants in the written statement denied the existence of any such passage in the 'B' Schedule property.
4. The plaintiffs made an application under Order 26, Rule 9 of the Code of Civil Procedure for local investigation to ascertain whether or not the disputed passage, in fact, exists. By an order dated 8th June, 2006, learned trial Judge dismissed the application of the plaintiffs primarily on the ground that the alleged passage is not recorded either in the C.R. map or R.S. map of the concerned Dags and hence, it would be impossible for a Commissioner to ascertain the existence or otherwise of such passage by relayment of concerned maps. Learned Judge also observed that a Commission cannot be issued to collect evidence and further that the application for Commission was taken out by the plaintiffs after a long delay showing cavalier attitude of the plaintiffs. On these grounds, the application for Commission was rejected.
5. The plaintiffs made an application for review of the said order of the learned Judge wherein, inter alia, the plaintiffs pointed out that the sale deed nos.994 of 1930 and 8000 of 1971 clearly mention the existence of the passage concerned. These two sale deeds were not considered by the learned trial Judge while passing the order dated 8th June, 2006.
6. By an order dated 4th July, 2006, learned trial Judge allowed the review application and the plaintiffs' petition for local investigation was allowed. Learned Judge held that indeed he had not taken into consideration the said two deeds while passing the earlier order and this warranted review of the earlier order.
7. Being aggrieved the defendants preferred an appeal being Misc. Appeal No. 71 of 2006 before the learned Additional Court of Civil Judge (Senior Division), Hooghly. By a judgment and order dated 9th January, 2008, learned first appellate court allowed the appeal and set aside the order of the learned trial Judge. Learned appellate court observed that as there is no existence of path in the record of right in respect of the 'C' Schedule property, appointment of a Survey Commissioner will create more complications and delay in disposal of the case.
8. Being aggrieved by the judgment and order of the learned first appellant court, the plaintiffs have come up to this court by way of the instant revisional application.
9. The revisional application was heard and disposed of by a learned Judge of this court by a judgment and order dated 24th June, 2011 whereby the application was dismissed.
10. The petitioners applied for review of the said order of this court on the ground that the findings in the order were in favour of the petitioners and as such, the revisional application should have been allowed. By an order dated 5th January, 2012 the learned Single Judge allowed the application for review and set aside the judgment and order dated 24th June, 2011 passed in C.O. 1271 of 2008 with a direction that the said C.O. 1271 of 2008 shall be heard in presence of both sides afresh. This is how the matter is before this court today.
11. Learned counsel for the petitioners submits that since there is a real dispute regarding the existence of the passage concerned, it is absolutely essential that the local investigation be carried out to ascertain the true state of affairs.
