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Judgment
The is an application under Article 227 of the Constitution of India filed by the petitioner challenging the impugned order dated 21.11.2023 passed by the learned Civil Judge (Sr. Div), Udalguri in Title Suit No.16/2023 whereby the learned Trial Court has directed the Circle Officer, Harichinga to depute one Lat Mandal for demarcation of the suit land. The petitioner has also assailed the impugned order dated 06.12.2023 passed by the learned Civil Judge (Sr. Div), Udalguri in Title Suit No.16/2023 whereby the learned Trial Court has accepted the Advocate Commissioner’s report relating to demarcation.
Heard the learned counsel for the petitioner/defendant Mr. M.K. Sarma. Also heard Mr. S.K. Poddar, learned counsel for the respondent/plaintiff.
The case of the petitioner in the writ petition is that the respondent as plaintiff had filed a Title Suit No.16/2023 before the learned Civil Judge (Sr.Div) Udalguri seeking a declaratory decree inter alia for right, title, interest, recovery of possession in respect of a plot of land measuring 2 kathas, 13 and ½ lechas covered by Dag No.416 and 466 of P.P. No.388 and 361 basing on the fact that the plaintiff vide registered sale deed dated 09.03.2022 had come into possession over the suit land. However, when the plaintiff visited the suit land on 07.02.2023 to start construction of a building over the suit land, he saw that the present petitioners/defendants had erected a fencing and on being asked they refused to remove the fencing. Accordingly, the plaintiff/respondent filed the Title Suit 16/2023 for declaration of right, title and interest over the suit land, confirmation of possession and permanent injunction.
The present petitioners as defendants filed their written statements denying the claim of the plaintiff by stating that a plot of land measuring 13 lechas covered by Dag No.466 and 467 of P.P. No.388 which is alleged to be a part of the suit land has been under the possession of the defendants prior to 1990 on the strength of an unregistered sale deed executed by the title holder Bushli Ram Sahu in his favour.
After completion of the pleadings of the parties, the matter was fixed for discovery and admission and thereafter for framing issues by order dated 23.08.2023. Subsequently, the date for framing issues was re-fixed on 14.09.2023, 22.09.2023, 30.11.2023 and 21.11.2023.
On 21.11.2023, the respondent/plaintiff filed a copy of the sale deed dated 09.03.2022 along with photographs of the disputed land and the defendants/petitioners also filed their list of documents. However, no issues were framed even on 21.11.2023 and accordingly, the suit was re-fixed on 06.12.2023. However, on that day itself i.e. on 21.11.2023, the learned Trial Court directed the Court Master to send a copy of the order to the Circle Officer and the Circle Officer was directed to depute one Lat Mandal for demarcation 2 kathas of land. By the same order, the learned Court below also directed the Officer-in-Charge of Tangla Police Station to depute two armed branch constables to accompany the Advocate Commissioner for conducting the said demarcation. The Trial Court also sent a copy of the order to the Superintendent of Police, Udalguri for necessary action and compliance.
Subsequent to the aforementioned order dated 21.11.2023, the learned Trial Court passed another order on 06.12.2023 whereby the learned Trial Court has accepted the report of an Advocate Commissioner and observed that the said Commission report shall be kept as part of the record giving the opportunity to both the parties to cross-examine the Advocate Commissioner in due time if any rectification/modification is required.
The writ petitioner states that neither on 21.11.2023 nor on 06.12.2023, no application from either party seeking appointment of a Commissioner in the suit was filed. However, the learned Court below, without assigning any reason and without appointing any Advocate Commissioner has passed the impugned order on 21.11.2023 whereby, the learned Trial Court directed the Bench Assistant to communicate the order dated 21.11.2023 to the Circle Officer Harisingha and the Circle Officer was directed to depute the Lat Mandal for demarcation of 2 kathas of land and the Officer-in-Charge of the Tangla Police Station was also directed to depute armed constables to accompany the Advocate Commissioner. In fact, there was no order passed in the suit which reflects that there was an application for appointment of Commissioner in the suit. No application has also been filed by the plaintiff/respondent seeking demarcation of the suit land.
In the impugned order dated 06.12.2023, the Trial Court has made an observation that the Advocate Commissioner has filed his report relating to demarcation of land measuring 2 katha. In the order impugned 06.12.2023, the Court also reflected that the dispute between the plaintiff and the defendant has been settled. Finally, the Court ordered that the report of the Advocate Commissioner shall be kept as part of the record and the opportunity to cross-examine the Advocate Commissioner shall be with the parties in due time if modification/rectification is required. However, there was no direction or order of the Trial Court in the title suit asking the Advocate Commissioner to demarcate the suit land and to hand over the suit land to the plaintiff/respondent.
The petitioner further stated that the respondent/plaintiff along with the plaint had also filed a petition under Order 39 Rule 1 and 2 of the CPC praying for temporary injunction. This petition was registered as Misc.(J). Case 14/2023. The said MISC(J) Case 14/2023 has been disposed of in favour of the plaintiff in the context of the report of Advocate Commissioner vide order dated 21.11.2023. The learned Trial Court by order dated 21.11.2023 has appointed an Advocate Commissioner to submit a report as to “whether the tin-sheet boundary is covered after filing of the suit preferred by the plaintiff and part of the suit land falls within the tin-sheet boundary.” By the said order dated 21.11.2023 passed in the Misc (J) Case No. 14/2023, the petitioner was directed to hand over 2 kathas of land out of the total 2 kathas, 13 and ½ lechas which is not in the possession of the present petitioner and directed that an affidavit to that effect be submitted within one month. This order is not under challenge in the instant petition.
The petitioner further states that pursuant to the order 21.11.2023 passed in Misc (J) Case No. 14/2023, the Advocate Commissioner visited the plot of land adjacent to the suit land to make verification as directed by the Trial Court. But instead of making such verification, he proceeded to act beyond his terms of reference and held that the parties have mutually agreed to settle the matter and that the petitioner/defendant had agreed to hand over 2 kathas of land out of the total 2 kathas 13 and ½ lechas. 12. Being aggrieved, the petitioner has come before this Court praying for a direction to quash and set aside the impugned orders dated 21.11.2023 and 06.12.2023 passed by the learned Civil Judge(Sr. Div) Udalguri in Title Suit 16/2023.
Learned counsel for the petitioner submits that the order of injunction dated 21.11.2023 has not only granted a part of the main relief sought for in Title Suit 16/2023, that too without a trial when there is a dispute regarding the plaintiffs right, title, interest and possession over the suit land, but has also effected the main reliefs in the Title Suit inasmuch as there was no application for appointment of Advocate Commissioner by any of the parties.
Learned counsel submits that the learned Trial Court while passing the impugned orders ought to have taken note of the fact that there is no appointment of Advocate Commissioner in the main suit. It is also submitted that the Trial Court ought to have considered the provisions of law as contemplated in the CPC in Order 23 or 26 or Order 39 Rule 2A of the CPC before passing the impugned orders. The learned Trial Court without appointing a Commissioner in the main suit has accepted the report of the Commissioner submitted in the Misc (J) Case 14/2023 and by accepting the same has decreed a part of the title suit without trial. Further, the petitioner/defendant was not given an opportunity to cross-examine the Advocate Commissioner before accepting his report, thereby causing grave miscarriage of justice.
Learned counsel by referring to the provisions of the CPC submits that no application was filed by any of the parties under Order 39 Rule 7 and alternatively in the event the Trial Court exercises its power under section 151 of the CPC, the appointment of the Commissioner has to be in accordance with section 75 of the CPC. Moreover under Order 26 Rule 9 CPC, it is provided that a Commission can be appointed to make local investigations in any ‘suit’. However, in the instant case, the Advocate Commissioner was not appointed in the suit but he was appointed in the Misc (J) case No.14/2023 which was an application for temporary injunction. Further, if there was a settlement between the parties, there has to be a compromise agreement between the parties under Order 23 Rule 3 of the CPC. In the instant case there was no such compromise agreement between the parties. Learned counsel submits that the provisions of the CPC have been blatantly violated by the court below and serious miscarriage of justice has occurred due to which the interference of this court is called for.
Learned counsel for the petitioner has relied on the following authorities in support of his submissions:-
Padam Sen and Another vs State of Uttar Pradesh, AIR 1961 SC 218.
State of Uttar Pradesh vs Singhara Singh and Others, AIR 1964 SC 358
Chandra Kishor Jha vs Mahavir Prasad and others, (1999) 8 SCC 266
Ethopian Airlines vs Ganesh Narayan Saboo, (2011) 8 SCC 539
Learned counsel Mr. S.K. Poddar, appearing for the respondent/plaintiff submits that in a writ petition under Article 227 of the Constitution, the High Court cannot sit as an Appellate Court, nor can it sit in appeal over the correctness of orders passed by Courts and Tribunals over which it exercises power of superintendence under Article 227 of the Constitution. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported.
Learned counsel submits that there is no illegality in the order dated 06.12.2023 inasmuch as the Trial Court has simply placed the report of the Advocate Commissioner on record in the main Title Suit 16/2023. The Trial Court has not decreed the suit nor closed the evidence. No concession has been given to either side and no compromise has been recorded by the Court. The Trial Court has simply reflected the contents of the Commissioner’s report in the order dated 06.12.2023. In fact, the Trial Court has held that both the parties shall have the opportunity to cross-examine the Advocate Commissioner in due time if any rectification/modification is required.
Learned counsel submits that no prejudice has been caused to the petitioners by the impugned orders dated 21.11.2023 or 06.12.2023 as the trial is at the stage of framing issues and both parties will get opportunity to adduce evidence. Learned counsel however, fairly admits that the learned Trial Court seems to have committed an inadvertent mistake by reflecting the direction sent to the Circle Officer Harisingha and the O.C of the Tangla Police station in the main Title Suit 16/2023 whereas, the same should have been a part of the order dated 21.11.2023 in Misc(J) Case 14/2023.
Learned counsel submits that since the Title Suit also involved disputed boundaries and was related to the identity, and location and also the actual boundary on the spot, appointment of a Commissioner was appropriate in the Misc (J) case 14/2023 because such local investigation would assist the Court in deciding the petition for temporary injunction and further assist the court in the main suit also. Hence, there is no illegality or perversity in placing the report of the Commission in the records of the Title Suit even though the Commission was appointed in the Misc (J) 14/2023. Learned counsel submits that the Trial Court can suo moto in exercise of power under section 151 of the CPC appoint a Commission in order to elucidate the matter in controversy.
Learned counsel has relied on the case of Nandi Infrastructure Corridor Enterprises Limited vs B.Gurappa Naidu and Others in 2026 INSC 434. By relying on this case, the learned counsel submits that this Court in an application under Article 227 cannot substitute its own decision on facts and conclusion of an inferior Court or Tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse of power, or violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the Court or Tribunal has come to. The learned counsel therefore submits that the petitioner has failed to make out a case for this Court to exercise its extraordinary jurisdiction and therefore, the petition fails and may be dismissed.
I have duly considered the submissions made by the learned counsel for the parties and also perused the pleadings and the judgments relied upon by the parties.
In the case of Ouseph Mathai and another vs M.Abdul Khadir, (2002) 1 SCC 319, the Supreme Court held that no doubt, Article 227 confers a right of superintendence upon the High Court over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction, but no corresponding right is conferred upon litigants to invoke the jurisdiction under the said Article as a matter of right. The Apex Court held that only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate Courts and Tribunals resulting in grave injustice to any party. The Supreme had consistently held that Article 227 is not an appellate or revisional jurisdiction. This Court can exercise the jurisdiction under Article 227 of the Constitution only if:- (a) the Trial Court had acted without jurisdiction (b) the order is patently illegal or suffers from jurisdictional error or (c) interference is necessary to prevent a manifest miscarriage of justice. Since Article 227 is an extraordinary supervisory power, it is discretionary in nature and must be exercised with a high degree of judicial restraint. Such a petition cannot be converted into a substitute for an appeal or revision. Ordinarily, the High Court should not re-appreciate evidence merely because another view is possible, or merely because the subordinate court has committed an error of fact or law, or a procedural irregularity and correct each and every error and irregularity. The test is, therefore, not whether the impugned order is correct, but whether, the error is of such a nature that supervisory intervention is necessary to keep the subordinate Court within the bounds of its authority and prevent grave injustice.
In the instant petition, the petitioner has assailed the order dated 21.11.2023 passed in Title Suit No.16/2013 and also the order dated 06.12.2023 passed in Title Suit No.16/2013. This Court has also perused the order dated 21.11.2023 passed in Misc (J) 14/2023. The learned counsel for the petitioner has stated that against this order dated 21.11.2023 passed in Misc (J) 14/2023, the petitioner has already filed an application under Order 39 Rule 4 of the CPC but the same is pending disposal. Hence, this Court would not like to examine the validity or legality of the order dated 21.11.2023 in Misc (J) 14/2023 as the same is not under challenge in this petition. However, it has to be noted that the Court had appointed an Advocate Commissioner in Misc (J) 14/2023. And by the impugned order dated 06.12.2023 passed in Title Suit 16/2023, the Trial Court decided to take on record the report of the Advocate Commissioner to assist the Court in the Title Suit. The Title Suit is still at the stage of framing of issues and the Trial Court will continue with the trial in accordance with law. This Court does not find any perversity or error of fact or law in keeping the Advocate Commissioner’s report in the records of the Title Suit as the said report would assist the Court in the matter in controversy in addition to the oral evidence and no grave injustice has been caused to any party.
Nevertheless, as far as the order dated 21.11.2023 passed in Title Suit 16/2023 is concerned, it has also been admitted by the learned counsel for the respondent/plaintiff that such an order directed to the Circle Officer Harisingha and the O.C of Tangla Police station should have been passed in the Misc. (J) 14/2023. Such an error can be termed as an irregularity and the same does not render the order dated 21.11.2023 illegal or invalid.
In view of the findings above, this Court is of the view that the petitioner has not been able to make out a case to invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitutions of India and the petition is accordingly dismissed. 27.
However, it is clarified that the part of the order dated 21.11.2023 in Title Suit 16/2023 where direction is given to the Circle Officer Harisingha, O.C of Tangla Police station and the S.P. Udalguri shall be treated as part of the order dated 21.11.2023 passed in Misc (J)14/2023 and not in the Title Suit 16/2023.
Interim order if any stands vacated.