@JUDGMENTTAG-ORDER
K.A. Swami, J.@mdashThough the second respondent is not served. Sri Umakanth, learned Government Pleader is directed to take notice for the 2nd respondent.
2. This Civil Revision Petition is preferred against the order dated 17-4-1989 passed on I.A.No. 8 in O.S.No.4843/1988 by the learned XIV Additional City Civil Judge, Bangalore City.
3. I.A.No. 8 was filed by the plaintiff for appointment of a Commissioner. The learned Trial Judge has held that the appointment of a Commissioner is necessary for the purpose of local inspection and to report whether the deleted area of 22 guntas forms part of the land of the plaintiff by conducting a survey with reference to the file relating to the acquisition of land comprised in S.No.134/3A of Bilekahalli village. He has further directed the Commissioner to secure the concerned file from the Office of the second defendant and conduct a survey of the land of the plaintiff. He has also further opined that the report of the Commissioner will be of great assistance to decide the controversies involved in the suit.
3A. Respondent-1 is the plaintiff. The petitioner is defendant-1 and respondent-2 is defendant-2.
4. The plaintiff has filed the aforesaid suit for a Judgment and decree against the defendants declaring that the alleged acquisition proceeding is invalid, not in accordance with law and not binding on plaintiff and the alleged taking of possession on 1-10-1988 claimed by the defendants is false and not in accordance with law and to grant permanent injunction restraining the defendants, their agents, servants, employees or anybody claiming under them from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff, and direct the defendants to pay the plaintiff the cost of the suit and grant such other necessary relief under the circumstances of the case in the interest of justice and equity. Thus, it is a suit for a declaration that the acquisition proceedings pertaining to suit land is null and void and are not binding on the plaintiff and for a permanent injunction.
5. A portion of the suit land along with several other lands has been acquired for the Vijaya Bank Employees Housing Co-operative Society Ltd. - defendant No. 1 in the suit. The plaintiff has also obtained an ex parte order of temporary injunction. Defendant No. 1 has filed the objections for vacating the order of temporary injunction. That application is still pending. During the pendency of that application the plaintiff has filed I.A.No. 8 for appointment of Commissioner to make local investigation in respect of the suit schedule property and to report the details of the structures buildings and trees standing on the suit schedule property with the measurements and locations of the same in the sketch to be prepared by the Commissioner.
6. It is contended on behalf of the first respondent-plaintiff that the revision petition is not maintainable because an order appointing a Commissioner is not a case decided nor does it affect the right of the defendants in any manner, therefore, it is not revisable u/s 115 of the C.P. Code; that it cannot also be said that if the order appointing a Commissioner is allowed to stand, it would occasion a failure of justice or cause irreparable injury to the party against whom it is made; that the discretion has been judicially exercised inasmuch as having regard to the controversy between the parties as to very identity of the land involved in the suit. It is necessary to determine as to which is the portion which is acquired and which is the portion which is deleted from the acquisition. Therefore, the report of the Commissioner will be of great assistance to resolve this controversy between the parties.
7. On the contrary, it is contended by Sri Viswanath Shetty, learned Counsel for the petitioner-first defendant that an order appointing a Commissioner is a case decided inasmuch as by that order I.A.No. 8 is allowed and it stands disposed of therefore, even though it is a part of the proceeding of the suit; it amounts to a case decided; that the contention as to whether an order passed allowing the application seeking appointment of the Commissioner amounts to a case decided or not has lost all its efficacy in the light of the Explanation inserted by Central Act 104 of 1976 to Section 115 of the C.P. Code. It is also submitted that during the course of the suit several questions crop up affecting the substantive as well as procedural rights of the parties and if the trial Court decides such questions it will be deciding such rights or obligations of the parties. Therefore, such an order passed by the Court below is reusable u/s 115 of the C.P.C.
8. The learned Counsel for the petitioner has placed reliance on a decision of this Court in SHETTAPPA VEERAPPA KODADAVAR v. SHRI JAGAD-GURU SHRI GANGADHARASWAMIGALU 1963(1) KarLJ 170,
9. On the contrary, learned Counsel for the first respondent has placed reliance on the other decisions of this Court in KANNA REDDY N. v. B. SUGUNA AND ANR 1981(2) KarLJ 238. and
10. We may also point out that this Civil Revision Petition is referred to a Division Bench on disagreeing with the view expressed in Vijaya Bank Employees Cooperative Society v. Yerramma and Ors. While referring the case to the Division Bench, the learned Single Judge has observed thus:
"I am not agreeable to the view expressed in the said Civil Revision Petition. To me it looks that the appointment of a Commissioner is of discretion and if a Commissioner is appointed to hold a local inspection and file a report such an order cannot be interfered with under revision. Such an order will not be a case decided at all. At any rate, such an order will not affect the rights of the party who invokes revisional jurisdiction. The order appointing the Commissioner if allowed to stand would not occasion any failure of justice or cause irreparable injury to the party against whom such an order is made. In fact, the appointment of a Commissioner is not an Order against any particular party. It is an order made by the Court to find out the local conditions. What value should be given to the report of the Commissioner is for the Court ultimately to decide while appreciating the evidence led in the case. Hence, in ray view, the view expressed in the aforesaid Civil Revision Petition requires reconsideration. While admitting the Civil Revision Petition, I refer the matter for decision by a Division Bench. The papers may be placed before the Hon''ble Chief Justice for appropriate orders."
11. Having regard to the contentions urged on both sides, the following points arise for consideration:
1. Whether a revision u/s 115 of C.P.C. is maintainable against an order appointing a Commissioner under Order 26 Rule 9 of the C.P. Code?
2. If Point No. 1 is answered in the affirmative, whether the Order under revision is liable to be interfered with?
12. Point No. 1:- Section 115 of the C.P. Code reads thus:
"115(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court appears -
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit;
Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where -
(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this Section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.
Explanation:- In this Section, the expression, "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."
13. The conditions or the restrictions imposed on the power of revision exercisable u/s 115 of the C.P. Code by a High Court can be stated thus:
1) No revision lies to High Court against a decree or order passed by a subordinate Court whether it decides the whole or part of the case, if an appeal lies against such decree or order either to High Court or to any Court subordinate to High Court.
2) A revisional power can be exercised against any decree or order passed by a Court subordinate to High Court if such a decree or order is not appealable and such decree or order is passed by a Court subordinate to High Court; and in passing such order or decree,
a) it has exercised the jurisdiction not vested in it by law; or
b) has failed to exercise a jurisdiction vested in it by law; or
c) has acted in exercise of its jurisdiction illegally or with material irregularity.
3) Any order made by a Court subordinate to High Court including an order deciding an issue in the course of a suit or other proceeding, cannot be revised unless such an order or decision satisfies any one of the following further two conditions:
i) If such an order had been made in favour of the revision petitioner the suit or other, proceeding would have been finally disposed of; or
ii) if such an order is allowed to stand, it would likely to occasion a failure of justice or cause an irreparable injury to the party against whom it is made.
Thus the revisional jurisdiction can be exercised against an order or decree passed by a Court subordinate to High Court, whether it be of interlocutory nature or has finally decided the suit or proceeding whether in part or in its entirety, provided further that it satisfies the conditions referred to above, as the case may be, We shall not be understood as laying down the proposition that every interlocutory order passed in a suit or proceeding is revisable or a Revision Petition can be maintained. This aspect will be considered a little later. Whether an order passed by a subordinate Court amounts to a ''case decided'' or not had been the subject matter of discussion by the various High Courts and it led to several conflicting decisions also. It also added to prolongation of proceeding before the Court below. Therefore, the Law Commission of India in its 54th Report went to the extent of recommending for deletion of Section 115 C.P.C. itself. The Law Commission was of the view that adequate remedy is provided for in Article 227 of the Constitution to correct cases of excess of jurisdiction or non-exercise of jurisdiction or illegality or material irregularity in the exercise of jurisdiction; so, Section 115 is no longer necessary to be retained. However, the joint Committee of the Parliament did not agree with the Law Commission. The Joint Committee of the. Parliament observed thus:
"The Committee, however, feel that the remedy provided by Article 227 of the Constitution is likely to cause more delay and involve more expenditure. The remedy provided in Section 115 is on the other hand, cheap and easy. The Committee, therefore, feel that Section 115 which serves a useful purpose, need not be altogether omitted particularly on, the ground that an alternative remedy is available under Article 227 of the Constitution."
The Joint Committee therefore recommended for additions to the restrictions contained in Section 115. Consequently, the original Section 115 came to be numbered as Sub-section (1) and a new proviso to Sub-section (1) and a new Sub-section (2) and an Explanation thereto came to be added by Central Act 104/1976. The Explanation was specifically added to define the expression case decided'' in order to avoid controversy and lengthy arguments being advanced as to what is meant by ''case decided''. The expression ''any case which has been decided'' was explained to remove the doubt and to set at rest the controversy as to whether Section 115 applies to an interlocutory order. Thus by reason of addition of the Explanation to Section 115 of the C.P. Code, it cannot now be doubted nor any arguments can be entertained whether an interlocutory order or any order passed during the course of a suit or proceeding would amount to a ''case decided'', as long as the order affects some right or obligation of the parties in controversy in a suit or proceeding. In this connection, it may also be relevant to notice a decision of the Supreme Court in
"10. It may also be observed that by ordering that a question may properly be put to a witness who was being examined, no case was decided by the trial Court. The expression ''case'' is not limited in its import to the entirety of the matter in dispute in an action. This Court observed in
14. Thus it is clear that an interlocutory order in a suit or proceeding can be held to be a case decided if by such an order there is an adjudication for the purposes of the suit; or proceeding some right or obligation of the parties thereto in controversy but not every, order passed in the course of a suit or proceeding irrespective of the fact whether it decides some right or obligation or the parties in controversy. In the course of a suit or proceeding, several orders are passed by the Court trying a suit or proceeding. Every such order cannot be held to decide some right or obligation of the parties; However, there are several orders passed during the course of a suit or proceeding affecting the rights and: obligations of the parties to the suit or proceeding. Such rights may be substantive rights or procedural: rights: Order 26 of the C.P. Code deals with Commissions. It is open to a party to adduce evidence to prove the case pleaded by it or defence set up by it, as the case may be, by adducing oral and or documentary evidence directly before the Court. Certain evidence can properly be adduced by local investigation conducted by a commission. Even the oral evidence in some cases, a party or a witness is entitled to have the same recorded through a commission. Order 26 of the C.P. Code itself provides for issuing commissions to examine witnesses and for local investigations for scientific investigation, performance of ministerial act and sale of moveable property and to examine accounts, to make partition etc. Thus Order 26 of the C.P. Code gives a right to a party to the suit to have a commission issued for the aforesaid purposes. If the party seeking appointment of commission satisfies the conditions laid down in Order 26 of the C.P. Code, he is entitled to have the commission appointed for the purposes mentioned in Order 26 of the C.P. Code. If the Court below rejects the request for appointment of a commission in a case where the requirements for appointment of a commission are satisfied, undoubtedly, such an order would affect the right of a party to the suit to adduce evidence. If a witness is entitled to be examined on commission and the Court refuses to issue a commission to record the evidence of a witness, not only the right of a party to the suit is affected, the right of a witness to be examined on commission is affected. There may be cases in which appointment of commission itself may not be warranted. In such a case if the Court appoints a commission, it would be a case of exercising jurisdiction illegally. It would also result in affecting the right of the other party who opposes the appointment of a commission. A commission is appointed for local investigation to find out the local conditions, existence or otherwise of certain things as alleged by the parties, in order to enable the Court to appreciate the evidence on record in the proper perspective and to adjudicate the controversies in the suit or proceeding correctly, and as far as possible to be conformity with the existing realities. Therefore, in a case where the report of a commission based on local investigation is necessary but nevertheless the Court refuses such a request, the Court will not be in a position to properly appreciate the evidence on record and decide correctly the controversies involved in the suit. Consequently, the decision of the Court would suffer from infirmity and in many cases it may result in miscarriage of justice. Therefore, it is not possible to hold that an order appointing or refusing to appoint a commission does not affect the rights or obligations of the parties in controversy to the suit. Consequently, it follows that it is not possible to hold that no revision is maintainable against an order appointing or refusing to appoint a commission. We would also like to make it clear at this stage that it is one thing to say that a revision petition against an order appointing or refusing to appoint a commission is maintainable in law u/s 115 of the C.P. Code, and it is quite a different thing to say that an order appointing or refusing to appoint a commission is or is not liable to be interfered with in a particular case. The first statement relates to a bar at the threshold preventing the High Court even to look into the Revision Petition. The second one relates to examining the case and deciding as to whether it is a case for interference or not u/s 115 of the C.P. Code. It may also be pointed out that an order appointing or refusing to appoint a commission is not appealable and as such the bar contained in Sub-section (2) of Section 115 of the C.P. Code is not attracted. Whether in a given case an order appointing or refusing to appoint a commission is liable to be interfered with or not depends upon the facts and circumstances of each case and the purpose for which the commission is sought for and the reasons given by the subordinate Court. Therefore, we are of the view that a revision u/s 115 of the C.P. Code lies against an order passed appointing or refusing to appoint a commission under Order 26 of the C.P. Code. We would also like to make it clear that by holding that a revision lies against an order appointing or refusing to appoint a commission, we should not be understood to have laid down that every such order is liable to be interfered with. Whether an order passed in exercise of the discretion of the Court is liable to be interfered with or not, depends upon the question as to whether the discretion has been exercised judicially and on relevant considerations.
15. In Kanna Reddy v. Suguna and Anr. Sabhahit, J. did not hold that revision was not maintainable in law. What was held in that case was as follows:
"In the instant case, instead of refusing the commission, it is allowed. That makes no difference. That cannot decide the rights or obligations of a party. Hence, it does not become revisable. Besides it cannot be said that it causes any failure of justice or irreparable injury to the other side because it has always the right to object to the Commissioner''s report. It would be a piece of evidence at best as any other evidence. Hence, it cannot be said that an irreparable injury would be caused to the other side if the Commissioner reports after inspection. Hence, I hold that there is no ground to interfere with the order in revision."
Thus, the decision not to interfere with the order appointing; a Commission rested mainly on the facts and circumstances of that case. No doubt during the course of Judgment Sabhahit, J. referred to a decision of the High Court of Punjab and Haryana in
15A. We may also refer to, another decision of this Court in Shettappa veerappa Kadadavar v. Shri Jagadguru Gangadharaswamigalu. In this decision the order appointing a Commissioner was interfered with the Revision Petition was allowed and the order was set aside following a decision in
16. V. Krishna Bhat v. Ravishankar and Ors. was not concerned with an interlocutory order. That was a case in which a Revision Petition was filed challenging the correctness of the order allowing the application filed by the plaintiffs requesting, the Court to permit them to prosecute the suit in forma pauperis. A proceeding under Order 33 of the C.P. Code is not an interlocutory proceeding, even though it is filed along with a plaint. Further in V. Krishna Bhat''s case the question as to whether the Revision Petition u/s 115 of the C.P. Code was or was not maintainable was not considered, in that case only two contentions were advanced i.e., (i) that the plaintiffs had not disclosed all their assets in their application as provided under Sub-rule (2) of Order 33 C.P. Code and (2) that the plaintiffs also possessed sufficient means. On examining the case on merits and bearing in mind the limited scope of the jurisdiction u/s 115 of the C.P.C. as held by the Supreme Court in
"If the facts and circumstances of this case are considered in the light of what is stated above by their Lordships of the Supreme Court, it cannot be said that the decision of the learned Civil Judge on I.A.No. XVII calls for interference "at the hands of this Court."
Therefore the decision in V. Krishna Bhat''s case is not on the point.
17. In Chaitan Das v. Smt. Purnabasi Pattnayak and ors. it has been held that the order accepting the report of the survey knowing Commissioner having been passed in violation of the principles of Natural Justice apart from non-compliance of the provisions of Order 26 Rule 18 of the C.P. Code, if allowed to stand, it would result in gross miscarriage of justice, therefore interference u/s 115 of the C.P. Code is warranted.
18. In Ponnuswamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam the question as to whether against an order passed under Order 26 Rule 9 of the C.P.C. a Revision Petition can be maintained has been specifically considered. During the course of the Judgment it has also been pointed out that in the course of a suit several orders are passed affecting the procedural and substantive rights of the parties and against all such orders a revision can be maintained. Dealing with the order appointing a Commission it has been observed thus.
"The object of local investigation under Order XXVI, Rule 9 of the Code cannot be littled. 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 Order XXVI, Rule 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 possessive 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 consequence 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 Order XXVI Rule 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 or 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."
Dealing with the question whether there is a warrant for interference with the order passed under Order 26 Rule 9 of the C.P.C. it is further observed thus:
"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 Section 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 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 Section 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."
Thus, the decision in Ponnuswamy Pandaram''s case accords with the view expressed by us.
19. In Vijaya Bank Employees Co-operative Society Ltd. v. Smt. Yerramma and Ors. the question as to whether a Revision Petition against an order passed under Order 26 Rule 9 of the C.P.C. is maintainable or not has not been considered. On the merits of the case the order has been interfered with. Therefore, we are of the view that the said decision stands on the facts of those cases and cannot be held to decide the question as to whether a Revision Petition is or is not maintainable against an order passed under Order 26 Rule 9 of the C.P.C.
20. Shivshankar Bhat, J. while referring the matter to a Division Bench has made certain observations which have been reproduced in the earlier portion of the order. It is observed therein that an order appointing a Commission for local inspection cannot be interfered with in revision because such an order will not be a case decided at all and at any rate such an order will not affect the rights of the party who invokes revisional jurisdiction and if it is allowed to stand would not occasion any failure of justice or cause irreparable injury to the party against whom such an order is made. We have already pointed out that the contention as to whether such an order amounts to a case decided or not has lost its efficacy by reason of the Explanation added to Section 115 of the C.P.C. We have also pointed out that it cannot be said as a proposition of law that an order appointing or refusing to appoint a commission does not affect the rights of the parties. Whether such an order affects the rights of the parties depends upon the facts and circumstances of each case and the object for which the commission is appointed. Therefore, in the light of the conclusion arrived at by us and the EXPLANATION added to Section 115 of the C.P. Code and also the decision of the Supreme Court in Baldevdas Shivlal''s case referred to earlier, the observations made in the order of reference cannot be accepted as correctly expounding the law.
21. For the reasons stated above it is held that a Revision Petition is maintainable against an order appointing or refusing to appoint a commission. However, we should not be understood as laying down that an order appointing or refusing to appoint a commission is liable to be interfered with in a revision. Whether such an order should be interfered with or not depends upon the facts and circumstances of each case and the object for which the commission is appointed and the reasons given by the subordinate Court appointing or refusing to appoint a commission. Point No. (1) is answered accordingly.
22. Point No. 2: Sri Vishwanath Shetty, learned Counsel appearing for the Revision Petitioner submits that it is not necessary to decide this point and the petitioner is satisfied if the trial Court is directed to have the report of the Commission within a specified period and decide the application filed for vacating an order of temporary injunction within the period to be specified by this Court. In view of this submission we do not consider it necessary to decide as to whether the order under revision is liable to be interfered with or not. Accordingly, we dismiss this Revision Petition. However, we issue the following directions in the light of the submissions made on both sides.
It is submitted on both the sides that the suit now stands posted on 27-8-1990. As the injunction is operating against the defendants for the last more than one year and the application filed by the first defendant for vacating the same has not yet been decided as the consideration of the same has been deferred, we direct the trial Court to take up the suit on 24-7-1990. We also further direct the parties to appear before the trial Court on 24-7-1990. We further direct that the trial Court shall have the report of the Commissioner submitted within one month from 24-7-1990 and decide the application filed by the first defendant for vacating the order of temporary injunction before the end of September 1990.
