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Ponnusamy Pandaram v. The Salem Vaiyappama...
Factual and Procedural Background
The third defendant in O.S 474 of 1983 filed a revision against an order of the District Munsif of Tiruchengode. The plaintiff initiated a suit seeking a permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession of certain suit properties identified as survey numbers 289/2 to 289/19. The plaintiff alleged that the defendants were erecting foundations encroaching upon the western portion of S. Nos. 289/2 and 289/11. The third defendant claimed ownership of S. No. 289/1 and contended that the constructions were within this property. The central issue was whether the third defendant's foundations encroached on the plaintiff's land or remained within his own property. The third defendant filed an application under Order 26, Rule 9 read with Section 151 of the Code of Civil Procedure (C.P.C.) to appoint a Commissioner for local inspection and preparation of a report to ascertain the factual position. The trial court dismissed this application, holding that since ownership of S. No. 289/1 was undisputed, the parties could prove their case through evidence and documents without the need for a Commissioner. This dismissal order was challenged by the third defendant in the present revision.
Legal Issues Presented
- Whether the order refusing to appoint a Commissioner under Order 26, Rule 9 of the C.P.C. amounts to "a case decided" under Section 115 of the C.P.C. such that the High Court can exercise revisional jurisdiction.
- Whether the trial court erred in dismissing the application for appointment of a Commissioner for local inspection, thereby denying the third defendant the right to adduce evidence through local investigation.
Arguments of the Parties
Respondent's Arguments
- The order of the trial court refusing the appointment of a Commissioner is not a "case decided" within the meaning of Section 115 of the C.P.C., and hence not subject to revision.
- Reliance was placed on a High Court of Punjab and Haryana decision in Manvinier Kaur v. Godha Ram which held that refusal to appoint a local Commissioner under Order 26, Rule 9 is not a case decided.
Petitioner's Arguments
- The refusal to appoint a Commissioner effectively disposes of the party’s right to place crucial evidence before the court, thereby deciding a right or obligation within the meaning of Section 115 of the C.P.C.
- The trial court’s reasoning that there was no dispute over ownership of S. No. 289/1 misunderstood the issue, which concerns the location of the constructions and possible encroachment.
- The appointment of a Commissioner for local inspection is necessary to resolve factual ambiguities that cannot be reliably determined through documentary or oral evidence alone.
- The ratio in the Supreme Court decision R.S Khanna v. F.J Dillon supports a broad interpretation of "case decided" to include interlocutory orders deciding rights or obligations of the parties.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R.S Khanna v. F.J Dillon, A.I.R 1964 S.C 497 | Broad interpretation of "case decided" under Section 115 of the C.P.C., including interlocutory orders deciding rights or obligations. | Court relied on this to hold that interlocutory orders can amount to "case decided" if they dispose of rights or obligations, and thus be revisable. |
| Ballavpat v. Filmstan Distributors | Not every interlocutory order is a "case decided" under Section 115; only those deciding some right or obligation of the parties. | Court distinguished orders that merely regulate trial procedure from those which decide rights, emphasizing that the present order disposes of a right. |
| Ramgulam v. Rawin, A.I.R 1972 Pat. 499 | Interlocutory orders allowing or refusing certain procedural rights may or may not be "cases decided"; the key is whether rights or obligations of parties are adjudicated. | Used to illustrate that refusal to appoint a Commissioner disposes of the right to adduce certain evidence and thus is revisable. |
| Manvinier Kaur v. Godha Ram (High Court of Punjab and Haryana) | Held that refusal to appoint a Commissioner under Order 26, Rule 9 is not a "case decided" and thus not revisable. | Court rejected this precedent, finding it too restrictive and not addressing the party's right to adduce evidence via local investigation. |
Court's Reasoning and Analysis
The court began by addressing the preliminary objection that the impugned order was not a "case decided" under Section 115 of the C.P.C. The court referred extensively to Supreme Court precedents, particularly R.S Khanna v. F.J Dillon, which interpreted "case" broadly to include interlocutory proceedings that decide rights or obligations of parties. The court emphasized that from the institution of a suit until its final disposal, numerous interlocutory orders may decide rights or obligations and thus qualify as "cases decided."
Applying this principle, the court observed that the refusal to appoint a Commissioner under Order 26, Rule 9 effectively denied the third defendant the right to place crucial evidence through local inspection. The court explained the importance of such local investigations in resolving factual disputes that cannot be conclusively determined through documents or oral evidence alone.
The trial court's reasoning that there was no dispute over ownership of S. No. 289/1 was found to be a misconception because the real issue was whether the constructions encroached on the plaintiff's land. By denying the appointment of a Commissioner, the trial court effectively adjudicated a right of the third defendant, making the order a "case decided" within the meaning of Section 115.
Consequently, the court held that the revision was maintainable and that the trial court's order suffered from a failure to exercise jurisdiction properly. The court directed the trial court to appoint a Commissioner to conduct a local inspection and submit a report, thus enabling the parties to adduce necessary evidence and proceed with the suit without further delay.
Holding and Implications
The court allowed the revision and set aside the order of the trial court dismissing the application for appointment of a Commissioner under Order 26, Rule 9 of the C.P.C.
The trial court was directed to appoint the Commissioner within two weeks to conduct a local inspection and submit a report within a further two weeks. The suit was to proceed thereafter without delay.
This decision affirms that interlocutory orders denying a party the right to adduce evidence through local investigation may amount to "cases decided" under Section 115 and are therefore revisable. The ruling clarifies the scope of revisional jurisdiction and underscores the importance of procedural rights in civil litigation. No broader precedent beyond the direct effect on the parties was established.
1. The third defendant in O.S 474 of 1983 on the file of the District Munsif of Tiruchengode, is the petitioner in this revision. The respondent is the plaintiff. The plaintiff has filed the suit for a permanent injunction restraining the defendants and their men from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit properties by way of digging foundations, etc. The suit properties are in particular survey numbers, viz., S. Nos. 289/2 to 289/19 in the concerned village. According to the plaintiff, the defendants are trying to put up founda ions in the western portion of S. Nos. 289/2 and 289/11. The third defendant had filed a written statement and according to him, S. No. 289/1 belongs to him and the foundations put up by him are only within the portion of S. No. 289/1. Hence, the moot question that apparently comes up for adjudication on the pleadings is as to whether the foundations put up by the 3rd defendant are within S. No. 289/1 or whether they have encroached upon the lands of the plaintiff. The 3rd defendant took out I.A 571 of 1984 under O. 26, R. 9 read with S. 151 of the C.P.C, hereinafter referred to as the Code, to appoint a Commissioner to inspect the suit properties and S. No. 289/1, to note down as to whether the third defendant's constructions are well within S. No. 289/1 and other physical features that may be pointed out at the time of inspection and to suhmit a report with a plan drawn to scale. The court below has dismissed this application, stating that there is no dispute with reference to the ownership of S. No. 289/1 and hence, there is no need for appointment of a Commissioner and the parties can prove their case by evidence and documents. This order of the Court below is the subject matter of challenge in this revision.
2. Mr. K. Sarvabhauman, learned counsel for the respondent, took a preliminary objection that the order of the Court below will not fall within the category of ‘a case decided’ as per S. 115 of the Cede, and hence, it is not permissible for this Court to exercise revisional powers. This preliminary objection has got to be adverted to and decided before this Court would proceed to adjudicate the other aspects involved in the revision. It is no longer possible to claim that ‘a case decided’ could relate only to the main suit and not any other proceedings between the initiation of the suit and its final adjudication In R.S Khanna v. F.J Dillonn . A.I.R 1964 S.C 497., three learned Judges of the Supreme Court countenanced as follows., while dealing with an interlocutory order by which the suit was held to be not maintainable:—
“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 noti subject and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may n suit in the perpetration of gross injustice. The expression ‘case’ includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone.”
From the inception of the suit until it is disposed of one way or the other, innumerable proceedings crop up and innumerable rights and obligations are claimed by and cast upon the parties and they have to be decided in such proceedings and if. In fact, some right or obligation of the parties in controversy gets decided in the course of such proceedings, that would amount to ‘a case decided’.
3. In Ballavpat v. Filmstan Distributors, the learned Judges of the Supreme Court dealt with an order of the trial court disallowing objections to certain questions in cross-examination, and the learned Judges held that it would not be a case decided and that the High Court was in error is exercising the powers of revision. After adverting to the ratio with regard to expression ‘case’ enunciated in S.G Khanna v. F.J Dillon,2 it has been observed as follows—
“… A case may be said to be decided if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy; every order in the suit cannot be regarded as a case decided within the meaning of S. 115 of the C.P.C” Page 410
This decision of the Supreme Court by itself does not delineate extensively as to the adjudication of what type of rights or obligations, of the parties would amount to a case decided. The learned Judges dealt with, as stated above a case where the trial court disallowed objections to certain questions in cross examination, and it was held that it is not a case decided.
4. In Ramgulam v. Rawin . A.I.R 1972 Pat. 499, Untwalia, J., as he then was, dealt with an order allowing the plaintiff to adduce further evidence after the defendant closed his case and the learned Judge opined that it was not a case decided. The following observations of the learned Judge are relevant as they do indicate that from the date of institution of the suit until it is ultimately decided oneway or the other, the possibility of orders getting passed in proceedings in between is always there:
“…It is well known that from the date of institution of a suit or a proceeding and until its conclusion by the trial Court, several orders are made from time to time. Some of them may be erroneous orders and even may smack of errors of jurisdiction. But all interlocutory orders, as the Supreme Court has pointed our, cannot be taken to be a case decided within the meaning of S. 115 of the Code. Alinehas to be drawn between the two types of orders, although both of them are made during the pendercy of the suit or proceeding. It has to be noticed whether a particular order is an adjudication by the trial court deciding for the purpose of a suit or proceeding some right or obligation of the parties in controversy, or whether it is an order which is not of that kind”. Page 501.
But the decisive factor to find out the revisability or otberwie of such otders is to determine whether by such orders some right or obligation of the parties in controversy gets decidad. The right or obligation need not necessarily have a nexus to the main list and in the progression of the suit towards its final adjudication and the final resolution of the controversy between the parties. Very many rights and obligations do ciop up and they have foundations both in substantive law as well as in procedural law and, if they get decided by such interlocutory orders, they are certainly revisable. Untwalia, J., as he then was, in the case cited above, by way of obiter, delineated a few examples of orders which could be revisable in revisional jurisdiction of the High Court as ‘cases decided’ in the following terms:—
“…I may endeavour to give a few examples to make myself clear, as to on which side of the line a particular order would lie. I would like to point out that an order in relation to interim injunction or appointing a receiver, when the case comes to this Court after the matter has been decided by the lower appellate Court, or an ordsr of stay staying tt e hearing of a suit or proceeding, or an order made under S. 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, and possibly an order in relation to amendment of pleadings, could be the types of orders in which it can be said that the order decides the case as it determines some right or obligation of the parties in controversy, and if there is any error of jurisdiction in that order, the High Court may interfere with it.”
page 581.
The learned Judge also referred to some cases where the orders passed would not be revisable in the following terms:
“As for example, some question in examination or cross-examination is disallowed, while it ought to have been allowed, some document wrongly admitted in evidence, while it ought not to have been admitted, a pleader commissioner's report is confirmed or set aside and further investigation ordered; these will be the types of interlocutory orders which to my mind cannot be interfered withby the High Court within the meaning of S. 115 of the Code.” page 502.
Of couse, they are not exhaustive and they only form examples.
5. The object of local investigation under O. 26, R. 9 of the Code cannot be belittled. Its object is to collect evidence at the instance of the party who relies on the same and which evidence cannot be taken in court but could be taken only from its peculiar nature, on the spot. This evidence will elucidate a point which may otherwise be left in doubt or ambiguity on record. The Commissioner, in effect, is a projection of the court, appointed for a particular purpose. In this regard, the implication of O. 26, R. 10 cannot be lost sight of when it says that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. We are not very much concerned with the (sic) probative value of the report of the Commissioner. But the party has got a right to place evidence which he could require to substantiate his case before the court and, of course, subject to the law of evidence and the Code, and it is the duty of the Court to receive such evidence unless there are other justifiable factors in law to decline to receive such evidence. The law of evidence enjoins upon the party to prove the fact which he relies on and in that sense, an obligation is cast upon the party and if he fails to discharge that obligation, adverse consequences will follow and he will have to face the repercussions of the same. This right of the party to adduce evidence gets adjudicated in the interlocutory proceedings under O. 26, R. 9. When there is a decline by the Court to issue the commission asked for to make local investigation, the purpose behind it being significant and in stated cases, imperative too, that order certainly disposes of the right claimed by the party to place the requisite evidence on his behalf. The question as to whether a particular order adjudicates some rights or obligations of the parties in controversy will depend upon the nature of the right or obligation and it is not possible to lay down a uniform rule and no decision, including any of the highest Court in the land, attempted to do so. Untwalia, J., as he then was, in the case cited above enumerated examples on either side.
6. Mr. K. Sarvabhauman, learned counsel for the respondent, relies on a pronouncement of a Bench of the High Court of Punjab and Haryana in Manvinier Kaur v. Godha Ram, where the Bench held that an order refusing to appoint a local Commissioner under O. 26, R. 9 of the Code is not a case decided and hence, not revisable. A restricted interpretation has been adopted by the Bench with regard to ‘some right or obligation of the parties in controversy’. The learned Judges took the view that such an order did not decide any issue or some right or obligation of the parties in controversy. The learned Judges have not adverted to the place of O. 26, Rr. 9 and 10 of the Code, and the right of the parties to adduce evidence in substantiation of their case and the implication of the denial of such right. I am not able to adhere to the ratio of the Bench of the High Court of Punjab and Haryana, in view of the reasons already expressed by me.
7. The above discussion eschews the preliminary objection taken by the learned counsel for the respondent.
8. Coming to the question as to whether, on the basis that the order passed by the Court below is a case decided, there is a warrant for interference within the meaning of S. 115 of the Code, I find that it is so. A controversy, as we could see from the pleadings, has arisen as to whether the constructions put up by the third defendant are within his land or whether they have encroached into the lands of the plaintiff. A local investigation is the best way to find out the position and the party, namely, the third defendant coveting to place the evidence before the court through local investigation by the Commissioner cannot be shut out of that right. A misconception has weighed in the mind of the Court below when it reasoned that there is no dispute about the ownership of S. No. 289/1 by the the third defendant. That is not the point in issue. Shutting out the evidence which a party is entitled to place before Court to substantiate his case, definitely decides that right of the party, adversely against him and in this view, the order passed by the court below is a ‘case decided’ and apart from that, on merits the order passed by the Court below comes within the mischief of the ratio adumbrated in S. 115 of the Code. There has been a failure to exercise jurisdiction vested in it by the Court below to a patent misconception of the position and this obliges me to interfere in revision.
10. For the reasons stated above, this revision is allowed. No costs. The Court below will appoint the Commissioner within a period of two weeks from the date of receipt of a copy of this order, call upon the Commissioner to make a local inspection and submit his report within a period of two weeks thereafter and proceed on with matter without any further delay.
VCS.
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