Similarly, in the case of Amiyu Bhusan (Supra) the Hon'ble Orissa
High Court has merely observed that taking the evidence in the locality,
inquiries and inspection of the disputed property by the Commissioner,
will not make his action one under Order 26 CPC. In that particular case
the trial court deputed a Commissioner under Order 39, Rule 7 CPC.
Thus, the report is to be treated as one under Order 39, Rule 7 CPC.
Although His Lordship of the Hon'ble Orissa High Court held that such a
report cannot be treated as a piece of evidence, but with respect His
Lordships has not clarified as to the need, the nature, and the use of the
inspection report under Order 39, Rule 7 CPC. Obviously, the inspection
report under Order 39, Rule 7 CPC has a purpose for the trial court. It is
not merely an ornament to be kept in the judicial record. As stated above,
the said inspection report would have to be necessarily taken on record
and utilised for deciding the issues in dispute. Thus, it will form part of
“evidence”. Therefore, this Court is, with respect, not in agreement with
the opinion expressed by His Lordship of the Hon'ble Orissa High Court
that an inspection report under Order 39, Rule 7 CPC does not and cannot
form part of evidence.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.2832/2014
Shafiq Ahmed
v.
Naseer Ahmed & others
Date of judgment
Reportable
9.5.2014
Hon'ble Mr. Justice R.S. Chauhan
Mr. Gaurav Sharma, for petitioner
Citation; AIR 2014 Rajasthan 116
The petitioner is aggrieved by the order dated 23.1.2014 passed by
Civil Judge (Jr. Div.) and Metropolitan Magistrate East, Jaipur
Metropolitan, whereby the learned Magistrate has rejected the petitioner's
application under Order 39, Rule 7 CPC, and has refused to appoint a
Commissioner for carrying out an inspection of the suit property.
2.
The brief facts of the case are that the petitioner-plaintiff, Shafiq
Ahmed, filed a suit for perpetual injunction against the respondent-
defendants. According to the petitioner, he had bought the joint rights
usage over staircase constructed from ground floor to the first floor, and
building rights above first floor, through a registered sale-deed dated
22.12.2013 from one Mohammad Ishaq.
After purchase of the said
property, the petitioner constructed the second and third floor.
The
respondents have a set of house in the western portion of the petitioner-
plaintiff's building, and the access is from their exclusive staircase. They
do not have the access to the staircase situated in the eastern portion of the
building. However, they have tried to carve out a gate on the third floor,
opening through the staircase situated in petitioner's property.
The
respondent-defendants filed their written statement and denied the
contents of the plaint. During pendency of the suit, the petitioner filed an
application under Order 39, Rule 7 CPC praying for appointment of a
Commissioner to assess and report the actual position with regard to the
staircase. The respondent-defendants filed their reply to the application
and contested the same. However, by order dated 23.1.2014 the learned
Magistrate dismissed the application.
Hence, this petition before this
Court.
3.
Mr. Gaurav Sharma, the learned counsel for the petitioner, has
raised following contentions before this Court: firstly, there is clearly a
distinction between appointment of a Commissioner under Order 26,
Rules 9 and 10 CPC, and under Order 39, Rule 7 CPC. Order 26, Rule 9
CPC deals with appointment of a Commissioner when the Court deems a
local investigation to be requisite or proper for the purpose of elucidating
any matter in dispute and Rule 10 makes the Commissioner's report as part
of an evidence. But Order 39, Rule 7 CPC merely empowers the Court to
send a person for detention, preservation or inspection of any property.
Therefore, while sending a person for inspection under Order 39, Rule 7
CPC, no evidence is being collected. In fact, the inspection report cannot
even be treated as evidence in the trial. Therefore, the reasoning given by
the learned Magistrate that a Commissioner cannot be appointed for
collection of an evidence, or creation of an evidence, is a misplaced
reasoning vis-a-vis Order 39, Rule 7 CPC.
In order to buttress this
contention, the learned counsel has relied on the cases of Nitindra Nath
Roy Choudhury v. Subhas Ch.Kar [AIR 1981 Cal 319]; Autodesk Insc
& Another v. Arup Das & Others [CCP No.49/2011, High Court of
Delhi, decided on 22.10.2013]; Suresh Manoharlal Jumani & Another
v. Aasia Management & Consultancy Pvt. Ltd. [(2013) 6 AIIMR 117],
and Amiyu Bhusan v. Ahammad Ali [AIR 1987 Ori 203]. Secondly, it
is not necessary that the inspection report would have been in the
petitioner's favour. The chances are that the report may either be neutral,
or may be contrary to the petitioner's interest. Therefore, the learned
Magistrate has failed to exercise the jurisdiction vested in him under
Order 39, Rule 7 CPC.
Thus, the impugned order deserves to be
interfered with.
4.
Heard the learned counsel and perused the impugned order, as well
as the case law cited at the Bar.
5.
Order 26 of the Code of Civil Procedure deals with Commissions.
While Rules 1 to 8 deal with appointment of Commission for examination
of a witness, Rule 9 deals with Commissions to make local investigations.
Rule 9 is as under:-
4
“Commissions to make local investigations.-- In any suit in
which the Court deems a local investigation to be requisite or
proper for the purpose of elucidating any matter in dispute, or
of ascertaining the market-value of any property, or the amount
of any mesne profits or damages or annual net profits, the
Court may issue a commission to such person as it thinks fit
directing him to make such investigation and to report thereon
to the Court:
Provided that, where the State Government has made
rules as to the persons to whom such commission shall be
issued, the Court shall be bound by such rules.”
6.
Rule 10 deals with procedure to be adopted by the Commissioner
while making an investigation, and Rule 10(2) clearly lays down 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. Rule 10 is as
under:-
“Procedure of Commissioner.-- (1) The Commissioner, after
such local inspection as he deems necessary and after reducing
to writing the evidence taken by him, shall return such
evidence, together with his report in writing signed by him, to
the Court.
(2) Report and depositions to be evidence in suit.--
The report of the Commissioner and the evidence taken by him
(but not the evidence without the report) shall be evidence in
the suit and shall form part of the record; but the Court or, with
the permission of the Court, any of the parties to the suit may
examine the Commissioner personally in open Court touching
any of the matters referred to him or mentioned in his report, or
as to his report, or as to the manner in which he has made
investigation.
(3) Commissioner may be examined in person.--
Where the Court is for any reason dissatisfied with the
proceedings of the Commissioner, it may direct such further
inquiry to be made as it shall think fit.”
7.
On the other hand, Order 39 deals with temporary injunctions and
interlocutory orders. Order 39 is divided into two parts: the first part deals
with temporary injunctions which include Rules 1 to 5, and the second
part deals with interlocutory orders which deals with Rules 6 to 10. Rule
7 is as under:-
“Detention, preservation, inspection, etc., of subject-matter of
suit.-- (1) The Court may, on the application of any party to a
suit, and on such terms as it thinks fit.--
(a) make an order for the detention, preservation or
inspection of any property which is the subject-matter of such
suit, or as to which any question may arise therein;
(b) for all or any of the purposes aforesaid authorize
any person to enter upon or into any land or building in the
possession of any other party to such suit; and
(c) for all or any of the purpose aforesaid authorize
any samples to be taken, or any observation to be made or
experiment to be tried, which may seem necessary or expedient
for the purpose of obtaining full information or evidence.
(2) The provisions as to execution of process shall apply,
mutatis mutandis, to persons authorized to enter under this
rule.”
The said rule empowers the Court to make an order for detention,
preservation, or inspection of any property which is the subject matter of
the suit. The Court may authorise a person to carry out an inspection.
8.
A comparison of Order 26, Rule 9 and Order 39, Rule 7, clearly
bring out the distinction that while the latter provision shall be used while
dealing with a temporary injunction or an interlocutory order, the former
provision can be used at any stage of the trial.
9.
But the moot question before this Court is – Can an inspection
report made under Order 39, Rule 7 CPC be used as “evidence” by the
trial court? Although Order 39 CPC does not have a provision similar to
6
the provision of Order 26, Rule 10, but it does not mean that an inspection
report under Order 39, Rule 7 CPC would not amount to an evidence.
After all the inspection report would have to be taken on record by the
trial court; after all it would have to be marked as an Exhibit; after all it
would be relied upon by the one of the parties to the suit; after all the party
disagreeing with the said inspection report would have the right to cross-
examine the person who has submitted the inspection report. Thus, the
inspection report would tantamount to an evidence.
Therefore, the
contention raised by the learned counsel that while a Commissioner's
report under Order 26, Rule 9 tantamounts to evidence, and inspection
report under Order 39, Rule 7 does not tantamount to an evidence, such a
contention is clearly unacceptable.
10.
Merely because the report may be neutral or independent, and may
not help either of the sides, would not take away from the settled
principles of law that appointment of a Commissioner cannot be used as
an excuse for collecting evidence which may be in favour of one of the
parties to the suit.
Therefore, the reasoning given by the learned
Magistrate is certainly justified. Moreover, if there is a dispute with
regard to the staircase, with regard to the structure, with regard to its use,
the petitioner, as a plaintiff, is duty bound to establish his pleas by cogent
evidence produced by him. Thus, he could not have sought appointment
of a Commissioner for collecting evidence which may go in his favour.
11.
In the case of Nitindra Nath Roy Choudhury (supra) the Hon'ble
7
Calcutta High Court has merely observed that when the condition of a
structure is at issue, or may be at issue, a commission for local inspection
cannot be issued under Order 26, Rule 9 CPC and the proper procedure is
to apply provisions under Order 39, Rule 7 CPC.
According to the
Hon'ble Calcutta High Court, the Court is authorised to issue commission
for inspection at any stage of the suit, and even after the plaint is filed.
However, the issue before this Court is not whether the commission
should have been issued under Order 26, Rule 9, or under Order 39, Rule
7 CPC. Since the application had been filed under Order 39, Rule 7 CPC,
the discussion carried out by the Hon'ble Calcutta High Court is not
germane to the controversy before this Court. Moreover, the Hon'ble
Calcutta High Court has not dealt with the issue whether an inspection
report made under Order 39, Rule 7 CPC would tantamount to creation of
an evidence which may go in favour of a party. Therefore, the said case
does not buttress the plea of the learned counsel for the petitioner.
12.
Similarly, in the case of Autodesk Insc & Another (Supra) the
Hon'ble Delhi High Court has merely delineated the status of the
Commissioner as being an extended arm and agent of the Court. There
cannot be any issue with regard to the status of the Commissioner, and the
need for the appointment of a Commissioner in certain circumstances.
However, the issue before this Court is not about either the status of, or
the need for appointment of a Commissioner in the present case. The
issue is whether a Commissioner can be appointed for gathering evidence
8
which may be used by one of the parties to the suit or not. Therefore,
even the case of Autodesk Insc & Another (Supra) does not support the
case of the petitioner.
13.
Similarly, in the case of Amiyu Bhusan (Supra) the Hon'ble Orissa
High Court has merely observed that taking the evidence in the locality,
inquiries and inspection of the disputed property by the Commissioner,
will not make his action one under Order 26 CPC. In that particular case
the trial court deputed a Commissioner under Order 39, Rule 7 CPC.
Thus, the report is to be treated as one under Order 39, Rule 7 CPC.
Although His Lordship of the Hon'ble Orissa High Court held that such a
report cannot be treated as a piece of evidence, but with respect His
Lordships has not clarified as to the need, the nature, and the use of the
inspection report under Order 39, Rule 7 CPC. Obviously, the inspection
report under Order 39, Rule 7 CPC has a purpose for the trial court. It is
not merely an ornament to be kept in the judicial record. As stated above,
the said inspection report would have to be necessarily taken on record
and utilised for deciding the issues in dispute. Thus, it will form part of
“evidence”. Therefore, this Court is, with respect, not in agreement with
the opinion expressed by His Lordship of the Hon'ble Orissa High Court
that an inspection report under Order 39, Rule 7 CPC does not and cannot
form part of evidence.
14.
The reliance on the case of Suresh Manoharlal Jumani & Another
(supra) is highly misplaced, for the learned counsel for the petitioner has
9
merely drawn the attention of this Court to para 6, sub para (vii) in order
to plead that in the said case the Hon'ble Bombay High Court had
discussed the distinction between Order 26, Rule 9 and Order 39, Rule 7
CPC. However, the said para merely records the contentions raised by
Mr. Y.S. Jahagirdar, the learned senior counsel for the respondent-
plaintiff. In fact a bare perusal of the entire judgment clearly reveals that
His Lordship has not discussed the distinction between the two provisions.
Therefore, even this particular case does not support the position of the
petitioner.
15.
For the reasons stated above, this Court does not find any illegality
or perversity in the impugned order. This petition being devoid of any
merit, is hereby dismissed. Consequently, the stay application also stands
dismissed.
(R.S. Chauhan) J.
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