Babukhan vs Kaptan Singh - 1980 Supreme(MP) 470

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Petitioner: R.C. Lahoti.
For the Respondent: K.S. Shrivastava.

Headnote:(1)Civil Procedure Code, 1908 – O. 26, R. 9 – Commission for local inspection under – purpose of – whether commission to ascertain possession may be issued – delegation of Court's power to Commissioner – extent of.
       (2)Civil Procedure Code, 1908 – O. 39, R. 1 and 2 – issuance of temporary injunction under – matter for consideration – what are – relevant date of possession is date of filing of suit.
        Short Note
       1. The only contention of the learned counsel for the petitioners is that the remand ordered by the appellate Court is bad in law for two reasons. Firstly, according to him, commission cannot be issued for reporting as to who is in possession of the house in question and secondly, the commissioner's report in that respect can be of no help in deciding as to who was in possession of the house on the date of institution of the suit.
       2. The Court cannot delegate to the commissioner the trial of any material issue which it is itself bound to try. In other words, a Judge cannot depute to a Commissioner the functions which he can and should discharge himself. When the Court is faced with the problem as to who is in possession of the disputed immovable property, the problem has to be solved by the Court on the basis of evidence on record. It does not seem to be the intention of the Legislature to allow the Commissioner to examine, witnesses and on the basis of evidence recorded by him, give report on the question as to who is in possession of the property. Possession is a legal term. It is constituted by some facts. Those facts have to be considered in order to decide the question of possession. A Commissioner may be appointed to inspect the spot and report as to the actual state of affairs on facts on the spot so that the Court may be able to appreciate the evidence before it and decide properly the question of possession but not for the purpose of giving report on the question of possession itself.
       3. By the impugned order, the Additional District Judge, directed a Commissioner to be appointed not for giving report as to the actual state of affairs or facts on the spot but as to in whose possession the house in question is. For reasons already stated, in my opinion, such a Commission cannot be issued.
       4. It is also significant that in their application dated 23.12.1977 filed in the trial Court, which application the Additional District Judge held to have been improperly dismissed by the trial Court, the respondents 1 and 2 had prayed for appointment of a Commissioner for spot inspection on the contention that the house was not in existence on the spot. The application was not one for appointment of a Commissioner to give report on the question of possession. For this reason also, the Additional District Judge could not have directed appointment of a Commissioner for the purpose of giving report on the question as to who, is in possession of the house at present.
       5. Apart from that, the question as to who is now in possession of the disputed property is not relevant for the purpose of deciding the matter of temporary injunction. The relevant point for consideration is as to whether the original plaintiff Bankekhan was in possession thereof on the date of institution of the suit, the object of temporary injunction being to maintain the status – quo as on the date of institution of the suit. If Bankekhan was not in possession of the property in question on the date of institution of the suit, he would not have prima – facie case and the temporary injunction application would, for the reason, fail. Thus, the purpose for which the Commissioner was directed to be appointed was not relevant.
       6. It follows that the Additional District Judge has committed material irregularity in exercise of jurisdiction and the impugned order, if allowed to stand, would occasion a failure of justice in the case. The revision petition must, therefore, be allowed.
       7. In the result, therefore, the petition is allowed. The impugned order is set aside and the appeal is sent back to the lower appellate Court for disposal according to law. 1971 JLJ 1007 relied on. Revision allowed.