1988 Supreme(Raj) 406

RAJASTHAN HIGH COURT
S.C.Agrawal, J.
Prem Prakash Mishra - Appellant
Versus
Manglam Cement Ltd. & Anr. - Respondent
S.B. Civil Revision Nos. 919 of 1987 and 53 of 1988.
Decided On : 20-01-1988

A District Judge cannot pass an order directing that the possession of the property shall be with the Commissioner during the pendency of an application under Order 9 Rule 13 CPC.

Headnote:

ORDER 9 RULE 13 CPC - POSSESSION OF PROPERTY - APPOINTMENT OF COMMISSIONER - JURISDICTION - COURT CANNOT DIRECT POSSESSION OF PROPERTY TO COMMISSIONER DURING PENDENCY OF APPLICATION UNDER ORDER 9 RULE 13 CPC.

Fact of the Case:

Petitioner obtained an ex parte decree against the non-petitioners in a suit for eviction from the premises. The petitioner submitted an application for execution of the decree and the District Judge issued a warrant for possession. The non-petitioners filed an application under Order 9 Rule 13 CPC to set aside the ex parte decree and also filed an application for an interim order to stay the enforcement of the decree. The District Judge appointed a Commissioner to inspect the site and submit a report. The Commissioner submitted a report stating that he had taken possession of the property from the petitioner. The District Judge passed an order directing that the property will remain in the possession of the Commissioner and that the status-quo would be maintained.

Finding of the Court:

The District Judge exceeded his jurisdiction in passing the order directing that the possession of the property shall be with the Commissioner. The District Judge could not pass an order which had the effect of transferring the possession of the property from the hands of the petitioner to the Commissioner and permitting the Commissioner to take possession of the said property during to pendency of the application under Order 9, Rule 13 Civil Procedure Code submitted by the petitioner.

Issues: Whether the District Judge had the jurisdiction to pass an order directing that the possession of the property shall be with the Commissioner during the pendency of the application under Order 9 Rule 13 CPC.

Ratio Decidendi: The District Judge has exceeded his jurisdiction in passing the order dated 10th December, 1987 whereby he has directed that the possession of the property shall be with the Commission. Shri Chandra Prakash Verma, and in continuing the said direction in orders dated 11th December, 1987, 15th December, 1987, 16th December, 1987, and 17th December, 1987 during the pendency of the proceedings under Order 9 Rule 13 Civil Procedure Code . It was open to the District Judge to appoint Shri Chandra Prakash Verma, as a Commissioner to inspect the site and make a report with regard to the property in dispute. Such a report was considered necessary for the purpose of passing an order on the application for an interim order that was submitted by the non-petitioners on 10th December, 1987 alongwith the application under Order 9 Rule 13 Civil Procedure Code. After the receipt of the report of the Commissioner, the District Judge should have passed an appropriate order on the said application. The District Judge, however, not justified in passing an order, directing that the possession of the property shall be with the Commissioner Shri Chandra Prakash Verma. At the time of the passing of the said order the Commissioner was not in possession of the property. From the report of the Nazir as well as the report of the Commissioner it appears that the possession of the property had been delivered to the petitioner. As a result of the directions given by the District Judge, on 10th Dec., 1987 the Commissioner took over the possession of the house from the petitioner by placing his locks on the property. Such an order for directing the possession of the property being given to the Commissioner is not contemplated under any of the provisions of the Code of Civil Procedure Under Order 26 a Commissioner can be appointed to examine a witness, for local investigation. for scientific investigation, for sale of immovable property for examing accounts. or to make partition. Under order 39 Rule, 7 also the Court can make an order for inspection of any property which is the subject matter of the suit in the present case, the direction that was given by the District Judge in his earlier order passed on 10th December, 1987 appointing Shri Chandra Prakash Verma as the Commissioner to inspect the site appears to have been passed under Order 39, Rule 7 Civil Procedure Code . After the Commissioner had submitted his report after inspecting the site on 10th December, 1987 the District Judge should have passed an order after taking into consideration the said report. He should have passed an order for maintaining the status quo as disclosed in the report of the Commissioner. But the District Judge could not pass an order which had the effect of transferring the possession of the property from the hands of the petitioner to the Commissioner and permitting the Commissioner to take possession of the said property during to pendency of the application under Order 9, Rule 13 Civil Procedure Code submitted by the petitioner. The aforesaid direction which was given by the District Judge in his subsequent order passed on 10th December 1987 which was continued by him in his subsequent orders cannot, therefore be upheld.

Final Decision: The revision petition is allowed and the direction given by the District Judge, Kota in his order dated 10th December, 1987 to the effect that the possession of the property shall remains with the Commissioner which direction has been continued in the subsequent orders dated 11th December, 1987. 15th December, 1987, 16th December, 1987 and 17th December 1987 is set aside and it is directed that the possession of the property should be restored into the same condition as it was on 10th December, 1987 prior to the giving of the aforesaid direction.