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High Court Of Delhi
SHASHI KAPUR - Appellant
Versus
O.P.GOGNE - Respondent
Civil Miscellaneous (Main) 92 of 1980
Decided On : 10/13/1980
CIVIL PROCEDURE - Inherent Powers - Appointment of Local Commissioner - Jurisdiction - Section 151 of the Code of Civil Procedure - Court's inherent power to appoint a Local Commissioner in circumstances not covered by Section 75 and Order XXVI of the Code of Civil Procedure - Exercise of inherent power in the interest of justice.
Fact of the Case:
A dispute arose between the petitioner and respondents over the construction of the first floor of a building. The respondents filed a suit for permanent injunction against the petitioner to restrain him from obstructing their construction activity. The trial court granted an interim injunction in favor of the respondents. The petitioner filed a revision petition challenging the trial court's order, which was dismissed by the High Court. The respondents then filed an application under Section 151 of the Code of Civil Procedure, seeking the appointment of a Local Commissioner to commence the construction work. The trial court allowed the application and appointed a Local Commissioner.
Finding of the Court:
The court held that the trial court had the jurisdiction to appoint a Local Commissioner in the exercise of its inherent powers under Section 151 of the Code of Civil Procedure. The court found that the provisions of Section 75 and Order XXVI of the Code of Civil Procedure, which deal with the appointment of Commissioners, are not exhaustive and do not prohibit the court from appointing a Commissioner in circumstances not covered by those provisions. The court also found that the trial court's order was necessary for the ends of justice, as it was necessary to enforce the interim injunction order issued in the suit.
Issues: 1. Whether the trial court had the jurisdiction to appoint a Local Commissioner in the exercise of its inherent powers under Section 151 of the Code of Civil Procedure? 2. Whether the trial court's order was necessary for the ends of justice?
Ratio Decidendi: 1. The court held that the trial court had the jurisdiction to appoint a Local Commissioner in the exercise of its inherent powers under Section 151 of the Code of Civil Procedure. The court found that the provisions of Section 75 and Order XXVI of the Code of Civil Procedure, which deal with the appointment of Commissioners, are not exhaustive and do not prohibit the court from appointing a Commissioner in circumstances not covered by those provisions. The court also found that the trial court's order was necessary for the ends of justice, as it was necessary to enforce the interim injunction order issued in the suit. 2. The court held that the trial court's order was necessary for the ends of justice, as it was necessary to enforce the interim injunction order issued in the suit.
Final Decision: The court dismissed the petition, upholding the trial court's order appointing a Local Commissioner.
( 1 ) THIS petition under Article 227 of the Constitution of India raises an important question of the jurisdiction of a Civil Court to appoint a Local Commissioner in the exercise of inherent powers under Section 151 of the Code of Civil Procedure.
( 2 ) THE dispute between the parties relates to premises No. S 231, Panchsheel Park, New Delhi built on a leasehold plot of land. Smt. Sulakshana Malhan (Respondent No. 2) was the exclusive owner of the said premises. She entered into an agreement on September 11, 1976 with the petitioner for letting out the said premises at a monthly rent of Rs. 1,200. 00. There are other conditions in the lease agreement with which this Court is not concerned in the present proceedings. The said premises are a single storeyed house. Smt. Mohini Devi (Respondent No. 3) lost her husband leaving behind a minor son and she came back from England to settle in India. Respondent No. 2 executed a gift deed in favour of respondent No. 3 transferring out of love and affection half share in the said premises. The name of respondent No. 3 is alleged to have been entered as joint owner in the records of the Panch Shiela Co-operative House Building Society, Delhi Development Authority and the Municipal Corporaon of Delhi. Respondents 2 and 3 submitted plans for the construction of first floor of the said premises. The plans were duly sanctioned by the competent authorities. Respondents 2 and 3 took steps to store the building material at the open space of the said premises and wanted to commence the construction of the first floor of the building. The petitioner started objecting to the construction of the first floor and thus the relations between the parties became strained. Respondent No. 4 is the mother of respondents 2 and 3. Respondents 2 to 4 filed a civil suit for permanent injunction against the petitioner herein for restraining him from obstructing their construction activity. Respondents 2 to 4 also filed an application for the grant of an interim injunction. Shri 0. P. Gogne, Sub Judge 1st Class, Delhi by his order dated September 6, 1 979 came to the conclusion that respondents 2 to 4 had shown a prima case and also the balance of convenience in their favour; that in case the temporary injunction was not granted, they might suffer irreparable loss because respondent No. 3 being a widow and helpless lady wanted to settle down in Delhi along with her son and for that purpose she sought to have shelter by constructing the first floor of the house in question and that on the other hand, no loss was going to be caused to the petitioner by the construction of the first floor. In the result, the petitioner and other defendants in the suit were restrained from obstructing respondents 2 to 4 in the construction of the first floor of house No. S-231, Panchsheel Park, New Delhi till the disposal of the suit. An appeal was directed against the order dated September 6, 1979 passed by Shri O. P. Gogne, Sub Judge 1st Class, Delhi. The appeal was dismissed by Shri K. S. Gupta, Additional District Judge, Delhi in his order dated April 22, 1980. Being aggrieved, the petitioner filed a revision petition under Section 115 of the Code of Civil Procedure in this Court. The revision petition was dismissed with costs on May 23, 1980. The petitioner then filed a special leave petition (Civil), being No. 5527/ 80 from the judgment and order of this Court dated May 23, 1980. The special leave petition was, however, permitted to be withdrawn on May 30,. 1980.
( 3 ) IN the meanwhile, respondents 2 to 4 filed an application under Section 151 of the Code of Civil Procedure before the trial Court alleging that after the decision of the High Court, the petitioner and defendants in the suit have become desperate and have locked the main gate and also the staircase leading to the first floor where the construction is to be carried on with a view to obstruct the entry of respondents 2 to 4 and their servants and laboure
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