2. Petitioner has filed this petition challenging the order dt. 1-8-2003 passed in Civil Suit No. 111A-03 (Ashutosh Dubey v. Tilak Grah Nirman Sahkari Samiti) by which the trial Court has issued a commission for investigating the fact that who is in possession of the disputed property.
3. The aforesaid order passed by the trial Court has been assailed by the defendants on the following grounds:—
i) That the similar prayer was made before the trial Court vide application Annexure P/2 dt. 8-1-2002 and the trial Court vide order dt. 21-1-2002 rejected the prayer on the ground that commission cannot be issued for ascertaining the fact that which of the party is in possession of the suit property.
ii) that again vide application Annexure P/5 dt. 23-7-2003 similar prayer has been made and the trial Court by the impugned order dt. 1-8-2003 has allowed the aforesaid prayer.
iii) that no commission can be issued for ascertaining the fact that which party is in possession of the property. This is a matter of evidence which is to be investigated by the trial Court.
4. Contending the aforesaid learned counsel for the petitioner submits that the Court below erred in exercising the jurisdiction under Order 26, Rule 9, Civil Procedure Code and impugned order may be quashed.
5. Learned counsel appearing for the respondents while supporting the order submits that the petitioner has suppressed the fact that the aforesaid order dt. 1-8-2003 was subject matter of the review application before the trial Court and the trial Court vide order dt. 18-9-2003 rejected the application and the aforesaid order has not been challenged by the petitioner so this petition deserves to be dismissed on this ground. The trial Court has rightly issued commission. Previous application was filed when the trial Court considering the application under Order 39, Rules 1 and 2 Civil Procedure Code. If such an application was rejected by the trial Court at that stage then the trial Court was not debarred from considering the application afresh at the stage of the evidence. In this regard he has placed reliance to the Single Bench judgment of this Court in the case of Mangilal v. Gourishankar, AIR 1992 M.P 309 and contended that this revision may be dismissed. Apart from this, scope of writ petition under Art. 227 of the Constitution has been considered recently by the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, as per the law laid down by the Apex Court, this petition did not fulfils the criterias fixed by the Apex Court in para 38 of the judgment. Consequently this petition may be dismissed.
6. From the perusal of the order dt. 21-1-2002 when the trial Court considered, I.A 3823/03 under Order 26, Rule 9, Civil Procedure Code has rejected the similar prayer of the petitioner for issuing of the commission for ascertaining the fact that which of the party is in possession of the property. Similar prayer again made by the petitioner which has been allowed by the trial Court. When the similar prayer was rejected by the trial Court on earlier occasion even though at the stage when the trial Court was considering the application under Order 39, Rules 1 and 2, Civil Procedure Code, at subsequent stage the similar prayer cannot be allowed. Apart from this the scope of Order 26, Rule 9, Civil Procedure Code is to ascertain the matter in dispute, market value of any property, mesne profit or damages etc. but issuing of commission for investigating the fact that which of the party is in possession of the property is beyond the scope of Order 26, Rule 9, Civil Procedure Code. This question has to be decided by the Court after adducing the evidence by the parties. The Court has to record findings in this regard and the aforesaid job of the Court cannot be shifted to the Commissioner. In the circumstances the trial Court has exceeded his jurisdiction in issuing such a commission ascertaining the fact that which party is in possession of the property.
7. So far as the decision of the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai and Single Bench judgment in Mangilal v. Gourishmkar (supra) is concerned, the facts of the aforesaid case are entirely different. The Apex Court in Surya Dev Rai v. Ram Chander Rai's case (supra) considering the scope of Article 227 of the Constitution of India held in para 38:—
38.(3). Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e when a subordinate Court is found to have acted (i) without jurisdiction — by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction — by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and there by occasioning failure of justice.
(4) supervisory jurisdiction under Art. 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
8. Considering the aforesaid, it is apparent that the order passed by the Courts below is without jurisdiction and the Court below has assumed jurisdiction which was not vested in it. Once the application under Order 26, Rule 9, Civil Procedure Code was rejected by the trial Court on merits, there was no occasion for the trial Court for re-consideration of the aforesaid application on similar facts. Apart from this, it is settled law that no such commission may be issued for collecting the evidence in the case. If the aforesaid order allowed to remain in existence it will cause serious injustice to the other side. This Court in Laxman v. Ramsingh Civil Revision No. 18 of 1982 decided on 24-2-1982 (1992 MPWN 255) has considered similar question held:—
“The prayer for appointment of a commissioner was made on the ground that the commissioner would be able to see on the spot the crop which is standing on the suit lands. This according to the defendant will bring out the truth of his case as according to him it was gram crop as sown by the applicant which was standing on it. Learned counsel for the non-applicant plaintiff had submitted that the appointment of Commissioner as being sought on certain assumptions. He had in this connection pointed out certain pleadings in that behalf. The object of local investigation is not so much to collect evidence for either of the parties. It is within the discretion of the Court to order a local investigation or rejected the prayer. The Court below has exercised that discretion by rejecting that application. In view of the circumstances, it cannot be said that the Court has committed any error on jurisdiction while rejecting the application in that behalf.”
9. Similar position is here, in this case the prayer for collecting of the evidence on spot has been sought through appointment of the commission which is beyond the scope of Order 26, Rule 9, Civil Procedure Code. In the circumstances Court below erred in allowing the application.
10. In the circumstances petition filed by the petitioner is entertained in view of the law laid down by the Apex Court. Consequently this petition is allowed. Order passed by the trial Court dt. 1-8-2003 so far as it relates to allowing the application under Order 26, Rule 9, Civil Procedure Code is concerned is hereby quashed. Trial Court is directed to proceed with the trial in accordance with law.
No order as to costs.
Petition allowed.