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Chintapatla Arvind Babu And Another v. Smt. K. Balakistamma Alias Bhargavi And Another

Andhra Pradesh High Court

Dec 5, 1991

Judgment

Subsequent
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Structured Summary of the Opinion (Revision Petition arising from O.S. No. 7 of 1990)

Factual and Procedural Background

The suit (O.S. No. 7 of 1990) was a suit for injunction concerning property in the plaint schedule described by house numbers in a locality (the plaint refers to house bearing No. 15-30 and other adjacent house numbers). The plaintiffs claimed that the plaint schedule property belonged to the 1st plaintiff and that the 2nd plaintiff was a tenant in that property.

The defendants (who are the revision petitioners) disputed the plaintiffs' claim. They asserted that their father, Srinivasa Chari, had purchased plot No. 44 Class D (200 square yards) by registered sale deed No. 480/60 dated 17-5-1960 from the National Educational Society of Nahar Kurnool and had constructed houses bearing Nos. 15-31, 15-33 and 15-40, and that the 2nd defendant is a tenant in house No. 15-38. They further asserted that the father of the 1st plaintiff had purchased plot No. 43 Class D (200 square yards) by registered sale deed No. 470/60 dated 17-5-1960 from the same Society and had constructed houses bearing Nos. 15-35, 15-36 and 15-37.

The defendants filed I.A. No. 77 of 1990 seeking appointment of an advocate-Commissioner under Order 26, Rule 9, C.P.C. to localise the plots (43-D and 44-D) and thereby establish whether particular houses (notably house No. 15-36 and No. 15-38) fall within the defendants' plot. The lower court dismissed that petition, observing (a) that in a suit for injunction it is sufficient to establish a prima facie case, (b) that the 1st plaintiff relied on a registered will dated 18-2-1988 bequeathing the plaint schedule house to her, (c) that the matter is merely a suit for injunction and not a suit for declaration and therefore not fit for appointment of an advocate-Commissioner to locate plots, and (d) that Order 26, Rule 9, C.P.C. does not permit appointment of a Commissioner for the purpose of "localising" plots but only to note features.

The defendants (petitioners) moved the present revision petition, challenging the lower court's refusal to appoint an advocate-Commissioner.

Legal Issues Presented

Whether an order dismissing an application under Order 26, Rule 9, C.P.C. for appointment of an advocate-Commissioner to make a local investigation (including localisation with reference to documents of title) is a "case decided" within the meaning of Section 115, C.P.C., and thus revisable by the High Court.
Whether Order 26, Rule 9, C.P.C. permits appointment of a Commissioner for the purpose of localisation with reference to title documents (i.e., whether "local investigation" includes localisation with reference to documents of title and not merely noting visible features).
Whether refusal to appoint a Commissioner under Order 26, Rule 9, C.P.C. can amount to denial of a party's right to adduce material evidence necessary to establish title or possession relevant to a suit for injunction (particularly where dispute exists as to who is the landlord and who is the tenant).
Whether, as a factual matter in this suit, the issue of who is the landlord (i.e., whether the 2nd plaintiff is tenant of the 1st plaintiff or of the revision petitioners) requires localisation and/or a Commissioner’s report to elucidate the dispute.

Arguments of the Parties

Revision Petitioners' Arguments

The revision petitioners (defendants) argued that their father had purchased plot No. 44 and constructed certain houses (including those in dispute) and that localisation of plots 43 and 44 in accordance with title deeds would establish that house No. 15-38 (or contested house numbers) belonged to them and that the 2nd plaintiff is their tenant.
They contended that appointment of an advocate-Commissioner under Order 26, Rule 9, C.P.C. was necessary to establish title and to produce conclusive/localising evidence.
They relied on authority (Ponnusamy v. Salem Vaiyapamalat Hangamar Sangam, AIR 1986 Mad 33) holding that an order declining to appoint a Commissioner is a "case decided" revisable under Section 115, C.P.C., and that declining appointment denies the party the right to adduce evidence by local investigation.

Respondent / Plaintiffs' Arguments

The respondents contended that the revision petition is not maintainable because an order dismissing an application for appointment of a Commissioner is not a "case decided" under Section 115, C.P.C. (relying on Harvinder Kaur v. Godha Ram, AIR 1979 Punj & Har 76).
They argued that the matter is a suit for injunction only and that it was appropriate for the lower court to refuse the petition; they further maintained that an injunction can be claimed by a person in possession even against a lawful owner, implying that the plaintiffs' possession suffices for injunctive relief.
The plaintiffs relied on precedent that a person in possession can seek injunction even against the rightful owner (Karthiyayani Amma v. Govindan, AIR 1980 Ker 224), though the court noted that this precedent did not resolve the tenancy dispute in this case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Harvinder Kaur v. Godha Ram, AIR 1979 Punj & Har 76	Supports the view that an order dismissing an application for appointment of a Commissioner is not a "case decided" under Section 115, C.P.C.	The court noted this authority as supporting the respondent's contention but ultimately preferred the contrary view in Ponnusamy's case and did not follow Harvinder Kaur.
Ponnusamy v. Salem Vaiyapamalat Hangamar Sangam, AIR 1986 Mad 33	Holds that an order declining to appoint a Commissioner under O.26, R.9, C.P.C. to make local investigation is a "case decided" and revisable under S.115, C.P.C.; adjudication of right or obligation need not have nexus to the main lis; refusal denies the right to adduce evidence via local investigation.	The court preferred this judgment and applied its principle to hold that the impugned order refusing appointment of a Commissioner is revisable under Section 115, C.P.C.
Ram Dass v. Smt. Subhash Bakshi, AIR 1977 Him Pra 18	States that an adjudication may be such as to have the necessary effect of deciding rights or obligations.	Cited to support the proposition that an order in the course of proceedings may have the effect of deciding rights/obligations and thus constitute a "case" for revision.
S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497	Construes "case" as including "a part of proceeding" whereby the High Court interferes in matters; used to show that the concept has been interpreted broadly even before the 1976 amendment of S.115.	Relied upon to show historical support for treating interim or interlocutory orders as constituting a "case" for superintendence/revision; the court cited it when discussing the scope of S.115.
Karthiyayani Amma v. Govindan, AIR 1980 Ker 224	Holds that a person in possession can seek injunction even against the rightful owner, preventing disturbance except under due process of law.	The court observed that this proposition (relied on by the plaintiffs) did not resolve the factual dispute in this case regarding who is the landlord and who is the tenant.
M.K. Setty v. M.V.L. Rao, AIR 1972 SC 2299	Cited in the proceedings but the court found it not applicable to the facts of the present case.	The court deemed this precedent inapplicable on the facts and circumstances of the case before it.
P. Saraswati v. V. Veerabhadra Rao, (1985) 1 APLJ (SN) 36 : AIR 1985 NOC 202	Held that question of prima facie title should be examined in an application for temporary injunction (O.39, R.1, C.P.C.) when the prayer is based on lawful ownership and possession on the date of the suit.	The court used this authority to distinguish the lower court's misconception that establishing a prima facie case in the main suit sufficed in place of proving actual possession in the main suit for injunction relief.

Court's Reasoning and Analysis

The court's analysis proceeded in distinct legal and factual strands:

Scope of Section 115, C.P.C. and "case decided":
The court reviewed conflicting authorities. While Harvinder Kaur supported the respondent's contention that an order dismissing a petition for appointment of a Commissioner is not a "case decided" for purposes of Section 115, the court preferred the reasoning in Ponnusamy (AIR 1986 Mad 33). Ponnusamy held that an order declining to appoint a Commissioner under O.26, R.9 is a revisable "case" because adjudication of a right or obligation need not be tied to the lis in the main suit and an order refusing local investigation can deny a party the right to adduce relevant evidence.

The court relied on S.S. Khanna (AIR 1964 SC 497) to observe that the expression "case" had been construed broadly even before the 1976 amendment to Section 115, and it noted that the Explanation to Section 115 (post-amendment) makes this broader construction explicit. On this basis the court held that the expression "case" in Section 115 includes any order made in the course of a suit or other proceedings, and that such an order may be revisable even if it merely has the effect of deciding a right or obligation.
Nature and scope of Order 26, Rule 9, C.P.C.:
The court examined Order 26, Rule 9 and held that "local investigation" under that rule is wide enough to include "localisation with reference to the documents of title." It emphasized that a report of a Commissioner appointed under O.26, R.9 is evidence under O.26, R.10 and can, in some cases, form the main or most credible evidence. Therefore, a refusal to appoint a Commissioner where localisation is necessary can deprive a party of potentially clinching evidence and could result in gross injustice.
Application to facts — necessity of appointment:
The court analysed the specific factual dispute: plaintiffs maintain the 1st plaintiff is the owner and the 2nd plaintiff is her tenant; the revision petitioners assert that house No. 15-38 belongs to them and the 2nd plaintiff is their tenant. Because the entitlement to injunction hinges on who has possession (and the 1st plaintiff's entitlement depends on whether the 2nd plaintiff is her tenant), the court concluded that it may be necessary to determine who has title and therefore localise the site with reference to title deeds.

The court found the lower court under a misconception in two respects: (a) the lower court treated establishment of a prima facie case as sufficient in the main suit to refuse the petition for Commissioner, conflating the test for temporary injunction applications (O.39) with the proof required in the main suit; (b) the lower court thought Order 26, Rule 9 could not be used for localisation, whereas the expression "local investigation" does encompass localisation with reference to title documents.
Conclusion from reasoning:
On the combined view of law and fact, and preferring the reasoning in Ponnusamy, the court concluded that the impugned order refusing to appoint a Commissioner under O.26, R.9, C.P.C. was revisable under Section 115, C.P.C., and that appointment of a Commissioner was requisite for elucidation of the dispute in this case.

Holding and Implications

Holding:

THE REVISION PETITION IS ALLOWED. The impugned order of the lower court refusing to appoint an advocate-Commissioner under Order 26, Rule 9, C.P.C. is set aside, and I.A. No. 77 of 1990 is allowed. The lower court is directed to appoint the advocate-Commissioner as prayed for. No costs. (The opinion concludes: "Petition allowed.")

Implications:

Direct effect on the parties: The directive requires the lower court to appoint an advocate-Commissioner to make local investigation/localisation with reference to title documents, which the court considered necessary to resolve the factual dispute about tenancy and possession (i.e., whether the 2nd plaintiff is tenant of the 1st plaintiff or of the revision petitioners) and thereby relevant to the plaintiffs' entitlement to injunction.
On legal principle: The court expressly preferred the view in Ponnusamy (AIR 1986 Mad 33) over Harvinder Kaur (AIR 1979 Punj & Har 76), holding that an order refusing appointment of a Commissioner under O.26, R.9 can be a "case decided" within the meaning of Section 115, C.P.C. and hence revisable. The court also held that "local investigation" under O.26, R.9 includes localisation with reference to documents of title and that a Commissioner's report is admissible evidence under O.26, R.10.
The court noted that no costs were awarded and that its decision required the lower court to proceed with the appointment and consequent local inquiry.

Petition allowed.

This summary is drawn exclusively from the text of the provided opinion. No information beyond that text has been added or inferred.

Show all summary ...

1. The defendants in O.S No. 7 of 1990, D.M.C, Nagar Kurnool are the revision petitioners. The suit was filed for injunction in regard to the house bearing No. 15-30. The plaintiffs claim that the plaint schedule property belongs to the 1st plaintiff and 2nd plaintiff is the tenant therein. The defendants contend that their father Srinivasa Chari purchased plot bearing No. 44 Class D to an extent of 200 square yards under a registered sale deed No. 480/60 dated 17-5-1960 from the National Educational Society of Nahar Kurnool and constructed the house bearing Nos. 15-31, 15-33 and 15-40 after obtaining permission from the panchayat and the 2nd defendant is their tenant in house bearing No. 15-38. It was further urged for the defendants that the father of the Ist plaintiff purchased a plot bearing No. 43 Class D of an extent of 200 spuare yards through a registered sale deed No. 470/60 dated 17-5-1960 from the same National Educational Society and constructed house bearing Nos. 15-35, 15-36 and 15-37.

2. The defendants filed I.A No. 77 of 1990 praying for appointment of an advocate-Commissioner for localising the plots covered by 44-D and 43-D in order to establish that the house bearing No. 15-36 is in plot No. 44 belonging to them. The lower Court dismissed the said petition by observing that it is sufficient, if prima facie case is established in a suit for injunction and the Ist plaintiff is reling upon the registered will dated 18-2-1988 executed by her father whereby the plaint schedule house was bequeathed to her, and it is a mere suit for injunction and as it is not a suit for declaration, it is not a fit case for ordering appointment of an advocate-Commissioner for locating plots 43 and 44, and O. 26, R. 9, C.P.C does not empower the Court to appoint a commissioner for localising the plots and it is intended for appointing the Commissioner only to note the features.

3. The learned counsel for the respondent urged that this revision petition is not maintainable, as the order of dismissal of a petition praying for appointment of a Commissioner is not a case decided as contemplated under Section 115, C.P.C It was further urged that as it is a mere suit for injunction, the lower Court rightly exercised the jurisdiction in refusing to allow the petition, for an injunction can be claimed by a person in possession even against a lawful owner.

4. The judgment reported in Harvinder Kaur v. Godha Ram AIR 1979 Punj & Har 76 supports the contention for the respondent that the order dismissing the application for appointment of Commissioner is not one of case decided as envisaged under Section 115, C.P.C and thus, the revision is not maintainable. But in Ponnusamy v. Salem Vaiyapamalat Hangamar Sangam, AIR 1986 Mad 33 different view was taken, therein, it was held that the order declining to appoint a Commissioner under O. 26, R. 9, C.P.C to make local investigation is a ‘case decided and revisable under S. 115, C.P.C It was observed therein that the adjudication of right or obligation need not necessarily have a nexus to the lis and in the progression of the suit towards its final realisation of the controversy between the parties. It was further held therein that the parties have the right to invoke Order 26, Rule 9, C.P.C to adduce evidence in substantiation of their csae, and an order declining to appoint a Commissioner is one of denial of such right. In Ram Dass… v. Smt. Subhash Bakshi…., AIR 1977 Him Pra 18 it was stated that the adjudication may be such as to have the necessary effect of deciding those rights or obligations.

5. It is for the parties to decide as to what evidence has to be adduced in support of their pleas and it is not for the opposite party or the Court to suggest or to indicate the evidence which has to be adduced. So long as the evidence is relevant and if it is not by way of dilatory tactics, the Court is bound to allow a party to adduce evidence. Order 26, Rule 9, C.P.C permits a party to move the Court for appointment of an advocate-Commissioner for local investigation if it is requisite or proper for the purpose of elucidating the matter in dispute. The report of such Commissioner shall be held as evidence in the suit and it forms part of the record under O. 26, R. 10, C.P.C When a party complains that the opposite party was attempting to disturb the features, a type of case considered in Ponnuswamy's case (2 supra) and applies for appointment of a Commissioner under O. 26, R. 9, C.P.C refusal to allow such petition prevents the party from having clinching evidence in proving the said fact and then it will be one of adjudicating about the right of the party to adduce evidence. There may be cases where the matter in dispute can be resolved by appointment of a Commissioner for localising the site in dispute with reference to the title deeds and the boundary dispute in regard to the vacant site is one such case. If the Court declines to appoint a Commissioner, it may result in the perpetration of gross injustice if the relief is denied to the aggrieved litigant where it is most needed. Thus, even before the amendment of S. 115, C.P.C in 1976 the expression ‘case’ was construed as including ‘a part of proceeding whereby the High Court in exercise of the power of Superintendence interferes in such matters, vide S.S Khanna v. F.J Dillon AIR 1964 SC 497. It is now made specific by the explanation to S. 115, C.P.C after it was amended by Amendment Act, 1976.

6. Thus, the expression ‘case’ in S. 115, C.P.C includes any order made in the course of suit or other proceedings. The adjudication of the right or obligation by that order need not have any lis in regard to the main proceeding. Even if the right or obligation is not decided by the impugned order and even if it will merely have the effect of deciding the right or obligation the said order can be treated as an order whereby the case is decided. The report of the Commissioner appointed under O. 26, R. 9, C.P.C is evidence. In some cases, the report the Commissioner may be the main evidence, if not the sole evidence and it is generally more credible evidence. Hence, with due respect, I prefer the judgment in Ponnuswamy's case AIR 1986 Mad 33 (supra) to the Judgment in Harvinder Kaur's case (AIR 1979 Punj & Har 76) (supra). So, the impugned order whereby the lower Court decliend to appoint Commissioner under O. 26, R. 9, C.P.C is revisable.

7. While the plaintiffs contend that the 2nd plaintiff is the tenant in house bearing No. 15-39 belonging to the Ist plaintiff, the revision petitioners urge that house bearing No. 15-38 belongs to them, and the 2nd plaintiff is their tenant. Thus, it is in dispute as to whether the 2nd plaintiff is the tenant of the plaintiff or the revision petitioners. The judgment reported in Karthiyayani Amma… v. Govindan…., AIR 1980 Ker 224 relied upon for the plaintiffs lays down the proposition that “the person in possession can seek injunction even against the rightful owner preventing him from disturbing his possession except under due process of law.” The said decision has no bearing for consideration of the question as to whether the 2nd plaintiff is the tenant of the Ist plaintiff or the revision petitioners.

8. The judgment reported in M.K Setty v. MVL Rao, AIR 1972 SC 2299 is also not applicable in view of the facts of this case. It is Urged for the revision petitioners that localisation as per the title deeds in favour of the revision petitioners and the plaintiffs will establish as to whether the house bearing No. 15-38 is within the plot purchased by the father of the Ist plaintiff, and it is not a case where the revision petitioners are contending that the father of the Ist plaintiff encroached into their site in construction of the said house. Of course, if it is merely the plea of the revision petitioners that the father of the Ist plaintiff constructed the house bearing No. 15-38 in the site belonging to the revision petitioners, the appointment of the Commissioner is not necessary for resolving the dispute as to whether the plaintiffs are entitled to the injunction as prayed for.

9. The plaintiff is not entitled to the relief of injunction, if he cannot establish possession. Admittedly, in this case the 2nd plaintiff is in possession of the house in question as a tenant. If he is the tenant of the Ist plaintiff, then the latter can claim the possession of the tenant as against the 3rd party. But if the 2nd plaintiff is the tenant of the revision petitioners, the Ist plaintiff cannot claim any injunction, for she has to be non-suited on the ground that she had no possession. So, in view of the pleas in this case, it is necessary to consider as to whether the 2nd plaintiff is the tenant of the Ist plaintiff or the revision petitioners. For that, it may be necessary to determine and of course incidentally, as to who is having title for the suit house. The appointment of Commissioner is prayed for establishing title. Thus, the appointment of Commissioner is requisite for the purpose of elucidating the matter in dispute.

10. The Court below was under misconception in regard to two aspects. The said Court felt that it is enough if prima facie case is established in a suit for possession. Only in an application filed under O. 39, Rr. 1 and 2, C.P.C praying for temporary injunction it has to be established inter alia that the applicant has a prima facie case. But in the main suit, it is necessary to prove that the plaintiff is in possession failing which, suit for injunction has to be dismissed on that ground alone. Even in the judgment in P. Saraswati v. V. Veerabhadra Rao (1985) 1 APLJ (SN) 36 : (AIR 1985 NOC 202) relied upon for plaintiffs it was held that the question of prima facie title to plaintiff should be gone into in an application for temporary injunction under O. 39, R. 1, C.P.C when it was prayed for on the ground of lawful ownership and possession on the date of the suit.

11. The Court below observed that Commissioner cannot be appointed under O. 26, R. 9, C.P.C for localisation. The expression ‘local investigation’ is wide enough to include ‘localisation with reference to the documents of title.’ Thus, it is a case where the Court below refused to exercise jurisdiction, which is vested in it.

12. Of course, the house bearing No. 15-38 was also referred to in the will executed by the father of the Ist plaintiff. But, whether the reference to the said house number is a mistake or not is a matter for consideration in the suit and thereby it cannot conclusively held that it belonged to the father of the Ist plaintiff. Thus, the impugned order is liable to be set aside. The revision petition is allowed and the impugned order is set aside and I.A No. 77 of 1990 is allowed. The lower court has to appoint advocate Commissioner as prayed for. No costs.