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1971 Supreme(Gau) 16
GAUHATI HIGH COURT
P.K.Goswami, D.M.Sen, JJ.
Manindra Kumar Rai -Appellant
Versus
Paresh Chandra Dey -Respondent
Civil Revn.No. 82 of 1968
Decided On : 10-03-1971
S.N.Medhi, N.M.Lahiri, J.P.Bhattacharjee, B.M.Mahanta
A court cannot constitute itself a Commissioner for surveying land under Order XXVI, Rule 9, C. P. C., under the guise of exercising its power to inspect property under Order XVIII, Rule 18, C. P. C.
Headnote:
COMMISSION FOR LOCAL INVESTIGATION - ORDER XVIII, RULE 18 AND ORDER XXVI, RULE 9, C. P. C. - DISTINCTION - POWER OF COURT TO INSPECT PROPERTY - SCOPE - POWER OF COMMISSIONER - DIFFERENCE - REVISION - WHEN LIES.
Fact of the Case:
Plaintiff filed a suit for declaration of right, title, and possession of certain land and for permanent injunction restraining the defendant from digging trenches and raising a brick wall on the suit land. The Munsiff appointed a Commissioner to survey and measure the land in question. The Commissioner submitted a report, but the plaintiff was not satisfied with the report and filed an application for re-issue of a Commission to ascertain the encroachment made by the defendant. The Munsiff rejected the application, and the plaintiff filed a revision application in the High Court.
Finding of the Court:
The High Court held that the Munsiff had acted illegally and with material irregularity in refusing to issue a commission for local investigation under Order XXVI, Rule 9, C. P. C. The Court held that the Munsiff had purported to exercise his power under Order XVIII, Rule 18, C. P. C., which allows the court to inspect any property or thing concerning which a question may arise, but that he had actually constituted himself a Commissioner for surveying the land under Order XXVI, Rule 9, C. P. C. The Court held that the Munsiff had denied the plaintiff an opportunity to question the report of the Commissioner or to furnish other appropriate evidence, and that this had forestalled a proper trial of the suit.
Issues: Whether the Munsiff had acted illegally and with material irregularity in refusing to issue a commission for local investigation under Order XXVI, Rule 9, C. P. C.
Ratio Decidendi: The High Court held that the Munsiff had purported to exercise his power under Order XVIII, Rule 18, C. P. C., which allows the court to inspect any property or thing concerning which a question may arise, but that he had actually constituted himself a Commissioner for surveying the land under Order XXVI, Rule 9, C. P. C. The Court held that the Munsiff had denied the plaintiff an opportunity to question the report of the Commissioner or to furnish other appropriate evidence, and that this had forestalled a proper trial of the suit.
Final Decision: The High Court allowed the revision application, quashed the impugned order of the Munsiff, and directed the Munsiff to issue a commission for local investigation under Order XXVI, Rule 9, C. P. C.
2. We may note how the matter arose in the suit before the learned Munsiff. The plaintiff brought a suit for declaration of right title and delivery of khas possession of certain land described in the schedule to the plaint and for permanent injunction restraining the defendant from digging trenches and raising brick wall on the suit land The defendant resisted the claim stating that the disputed land does not fall in the dags as alleged. He contended that a brick wall was being constructed on his own land and not on the land of the plaintiff. The defendant raised various other pleas also.
On the prayer of the plaintiff, the Munsiff appointed the Sub Deputy Collector of Sonari Circle as Commissioner to survey and measure the land in question. On 12th July, 1967 he submitted a report, which disclosed that he could not give a definite account of the suit land after investigation for certain reasons mentioned therein. Ultimately, the Munsiff held a local inspection of the suit land on 6th April. 1968 in presence of both parties. The Munsiff got the suit land measured by the Lot Mandal according to the old map. The learned Munsiff also submitted a report about the measurement. It was stated in the said report that after measurement it appeared that the plaintiff was in possession of 2 K. 15 L. of Dag No. 330 (old) and the defendant was in possession of 1 K. 4 L. of the same dag (2 lechas more than he purchased). On 28th May, 1968, the plaintiff filed an application supported by an affidavit stating that the memorandum of local inspection prepared by the learned Munsiff was not correct on the grounds given in that petition. He, therefore, prayed for re-issue of a Commission to the Sub-Deputy Collector or Surveyor Kanango to ascertain the encroachment made by the defendant in Dag No. 330 (old) with the help of the old approved map. The learned Munsiff rejected that prayer and hence this revision.
3. At the very outset, the learned Advocate-General of Meghalaya appearing on behalf of the defendant, submits that this application should be rejected as no case has been decided by the learned Munsiff against which a revision application may lie under Section 115 of the Code of Civil Procedure. He relies on a decision of the Supreme Court in (1969) 2 SCC 201 = (AIR 1970 SC 406), Baldevdas Shivlal v. Filmistan Distributors. It will appear that this decision has reiterated what had been earlier decided by the Supreme Court in AIR 1964 SC 497, S. S. Khanna v. F. J. Dillon and the following passage at para. 11 is apposite:
"The expression "case" is a word of comprehensive import: it includes civil proceedings other than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. To interpret the expression "case" as an entire proceeding only and not a part of a proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice." It is true that every interlocutory order may not attract the revisional jurisdiction of the High Court, but there may be some orders which, if not interfered with at the proper time, will lead to inordinate delay in disposal of the real issues raised
In the suit and in many cases result in hardship and injustice. As we show presently, this preliminary objection Is of no force,
4. By the Impugned order, the learned Munsiff purported to exercise his power under Order XVIII, Rule 18 of the Code of Civil Procedure. Since th
