Published on: 16 March 2023 at 18:55 IST
Allahabad High Court observed, it is impossible for a commission to decide possession of a particular party to dispute over the suit property only on the basis of a cursory examination.
Hon’ ble Allahabad High Court bench of Justice Manish Mathur was dealing with the petition challenging the order passed by the trial court rejecting the petitioner’s application for the issue of the commission under Order 26 Rule 9 of the Code of Civil Procedure as well as the order passed by the revisional court dismissing the revision.
In this case, the suit had been filed for cancellation of the sale deed and permanent injunction with regard to immovable property in which both the plaintiff as well as defendant claimed possession over property in dispute.
Under an apprehension that the status quo would be changed by the defendants, the petitioner-plaintiff was constrained to file an application for issuance of the commission under Order 26 Rule 9 read with Section 151 CPC on 2nd August 2016.
The same was rejected by means of detailed order dated 25th September 2017, which became final since no revision there against was affected.
Arun Kumar Srivastava, counsel for the petitioner submitted that the courts below have erred in rejecting the application for issuance of commission in view of the fact that the suit was not only for cancellation of the sale deed but for permanent injunction as well and therefore it was incumbent upon the court concerned to have indicated the status of parties as on the date on which the application was being made so as to prevent any future change at the spot.
Ghanshyam Yadav, counsel for the opposite party submitted that orders impugned are in consonance with settled law and do not warrant any inference, particularly in view of the fact that the suit was primarily for cancellation of the sale deed in which there is no occasion for determination of actual spot condition by the issuance of commission.
The bench noted that the purpose of the issuance of commission at the behest of the plaintiff in both applications was to ascertain the alleged possession of the plaintiff over the property in dispute.
High Court looked into the provision of Order XXVI Rule 9 of the Code and observed that the commission to make local investigations can be permitted by the court where it deems local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or ascertaining market value of any property, or amount of any mesne profit or damages or annual net profits.
The bench referred to the case of Remco Industrial Workers House Building Coop. Society v. Lakshmeesha M. and others where it was held that “A plaintiff is liable to succeed on his own footing and not on the weakness of the defendant. As such the pleadings made in the plaint are required to be corroborated or substantiated by evidence which is also required to be placed on record by the plaintiff himself,”.
“The only exception in such a case could be where such evidence is beyond reach of the plaintiff or is in such a secured place that he would normally not have access thereto but for the issuance of commission for nature indicated in such a case, it would be necessary and incumbent upon the plaintiff to plead particularly as to why the plaintiff could not have access to such evidence which would therefore require issuance of commission for the purposes of collection of such evidence.”
High Court stated that “Application for issuance of commission to conduct an investigation and examination regarding possession of parties to a dispute would not be maintainable in terms of Order XXVI Rule 9 of the Code particularly when there is no explanation furnished by the plaintiff that he could not have access to any documents required for proving his possession over suit property,”.
“Even otherwise, it is impossible for a commission to decide possession of a particular party to dispute over the suit property only on the basis of a cursory examination…”
Court: Allahabad High Court
Case Title: Km. Chandana Mukherji v. Addl. District Judge Special Judge
Case No.: MATTERS UNDER ARTICLE 227 No. – 6654 of 2020