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Judgment
Prakash Tatia, J.—Heard learned counsel for the parties.
The petitioner is aggrieved against the order dated 31.8.2005 by which the petitioner''s application under the heading "Order 39 Rule 7 CPC" was dismissed by the Additional District Judge No. 2, Jodhpur.
This Court has no hesitation in observing that the learned trial judge namely, Additional District Judge No. 2, Jodhpur either was not knowing the law on the subject of appointment of Commissioner or if he was knowing Law on the subject, then the position is much more grave.
On an application for appointment of Commissioner, the learned trial judge recorded findings which are in para No. 3 of the impugned order. Para No. 3 of the impugned order reads as under:
"i{kdkjku dh cgl lqudj i=oyh dkvoyksdu fd;k x;k A fnukad 18-6-2005 ds vokMZ ls vkjchV�sVj }kjk 58900 oxZ ehVj Hkwfe ij tkga 106 edku fufeZr gks x;s gS] mu edkuksa dh fLFkfr ckcr izkFkhZ o vizkFkhZ dks tks funsZ''k fn;s gS] mudh ikyuk ckcr nksuksa i{k ;FkkfLFkfr j[kh gqbZgksuk crkrs gSA bl vokMZ ds ek/;e ls tks [kqyh tehu vizkFkhZ tks/kk.kjh;y ,LVsV dks izkIr gqbZ] mltehu dks odhy vizkFkhZ fofHkUu O;fDr;ksa ds uke tfj;s iathc� cspku fuLrkfjr dj nsuk crkrs gS] tks leLr �srk bl izdj.k esa i{kdkj ugha gSA odhy vizkFkhZ dk dFku gS fd [kqyh iM+h tehu lhfyax dkuwu lekIr gks tkus ls tks/kk.kk jh;y ,LVsV dh lEifr Fkh] ftl lEifr dks izkIrdjus dk ;kftl lEifr ij ;FkkfLFkfr cuk;s j[kokus dk x`g fuekZ.k lgdkjh lfefr dks dksbZ vf/kdkj gh ugha gSA ekuuh; ftyk U;k;k/kh''k egksn; vodk''k ij gS rFkk deh''kuj dh fu;qfDr ekSdk eqvk;uk gsrq dh tk; ;k ugha dsoy bl fcUnq ij gh bl U;k;ky; dks vko'';d izd`fr dk vkosnu gksus ls fopkj.k dj vkns''k ikfjr djuk gS A ;g fLFkfr fufoZokn gS fd fnukad 18-6-2005 ds vokMZ dks izkFkhZ us bl U;k;ky; esa pqUukSrh nh gS A ;g fLFkfr Hkh fufoZokn gS fd tehu dk ekfydkuk gd tks/kk.kk jh;y ,LVsV MoyiesUV fyfeVsM vizkFkhZ dk gS rFkk izkFkhZ ,d lafonk ds rgr x`g fuekZ.k djus okyh lgkdkjh lfefr gS ftlus o"kZ 1984 esa tks dk;Z izkjEHk fd;k] og o�kZeku o"kZ 2005 rd vFkZr 21 o"kksZ ls tkjh gS �1� ;g ekus tkus ;ksX; ugha gS A �2� izkFkhZ }kjk izLrqr /kkjk 34 ds vkosnu i= ls dsoy iapkVs ds vokMZ dks egkjktk xtflag ds izHkko esa vkdj fn;k x;k vokMZ crkrs gq, ,d rjQk vokMZ dks vikLr djus dh izkFkZuk dh gS A �3� vizkFkhZ bl vokMZ ds rgr vfxze dk;Zokgh Hkwfe ds fuLrkj.k dh dj pqdk gS A�4� izdj.k ds rF;ksa ls Li"V gS fd ''kgjh Hkwfe ds vf/kxzg.k dks lhfyax o jsxqys''ku ,DV 1976 ds izHkko ls cpkus ds fy, vizkFkhZ ds i{k esa bdjkj dj xjhcksa dks vkokl cukdj vkoafVr djus dh ;kstuk cukbZ Fkh rFkk 21 o"kksZ dh vof/k esa u rks dksbZ xjhc miyC/k gqvk] u gh mu xjhcksa dks lkjh Hkwfe ij vkokl cukdj fn;s x;s rFkk tc 1976 dk ;g fo/kku oklil ys fy;k x;k] rc LokHkkfod rkSj ij Hkwfedsekfydkuk gd vizkFkhZ i{k dks okil izkIr gks x;s A nksuksa i{kksa ds e/; fookfnr lafonk fnukad 9-6-83 ds voyksdu ij ik;k x;k fd tks/kk.kk jh;y ,LVsV ds fu;a=.k esa o lafonk ds ''krksZ ds vUrxZr vkcknh Hkwfe dk fodkl djus rFkk ml Hkwfe ij vkoklh; edku cukus ds fy, izkFkhZ dks vf/kd`r fd;k x;k FkkA lfefr dks ikap :i;s oxZ tx ds :i;s tek djkus Fks rFkk Hkwfe dk fodkl dj fuekZ.k dk;Z djuk Fkk A Hkwfe dh dher o fuekZ.k dk 15 izfr''kr vnk dj ftu O;fDr;ksa us edku cuk;k gS] muds i{k esa cspuk i= fu"ikfnr gksus Fks] �5� ysfdu [ksn dk fo"k; gS fd fnukad 9-6-83 dh lafonk bdjkj ikyuk izkFkhZ lfefr us ugha dh] u gh bllafonk ds vuq:i 106 fufeZr edkuksa dks edkuksa ds /kkjdksa dks dksbZ ekfydkuk gd izkIr gqvk A [kQj tks Hkh fLFkfr gks] D;k bl U;k;y; ds vksn''k fnukad 20-8-2005 dh Hkkoukds rgr 106 fufeZr Hkouksa ds vykok cdk;k [kkyh iM+h tehu ds orZeku ekfydkuk gd dh fLFkfr o orZeku ds ml tehu ij tks/kk.k jh;y ,LVsV ls tehu [kjhnus okys �srkvksa dk fuekZ.k dk;Z jksdus dh eU''kk bl ;FkkfLFkfr vkns''k esa gS;k ugha bl fcUnq r;fd;k tkuk gS A odhy vizkFkhZ us izpkV ds rgr ;FkkfLFkfr cuk;s j[kus dh lgefr nh rFkk bl U;k;ky; us Hkh vokMZ ds rgr fooknxzLr lEifr dh ;FkkfLFkfr cuk;s j[kus dk vksn''k fn;k gS A �6� bldk rkRi;Z ;g gS fd fookfnr lEifr ds ekfydkuk gd dh ;FkkfLFkfr fnukad 20-8-2005 dh frfFk ds vuq:i j[kh tk;s rFkk vokMZ ds rgr vkus okyh lEifr 58900 oxZ ehVj gS] ml Hkwfe ij tks/kk.k jh;y ,LVsVls tehu [kjhn pqds yksxksa dks ;FkkfLFkfr cuk;s j[kus ds fy, ikcUn fd;k tk ldrk gS ;k ugha rFkk ekSdk eqvk;uk ftyk U;k;k/kh''k th us u rks foospu gh fd;kgS u gh ,slk dksbZ vksn''k fnukad 20-8-2005 esa fn;k gSA �7� ekSds dh ;FkkfLFkfr dCts o fuekZ.k ckcr ;Fkkor cuk;sj[kus dk vkns''k fnukad 20-8-2005 dk ugha gS A vr% vokMZ ds rgr tks ekSds dh fLFkfr gS] ml fLFkfr dks nksuksa i{k ;Fkkor cuk;s j[ksaA �8� bl ;FkkfLFkfr vkns''k esa tks/kk.k jh;y ,LVsV dh [kqyh iM+h tehu ij dksbZ fuekZ.k u gks ];k ;FkkfLFkfr j[kh tk;s] ,slk vfHkizk; bl vksn''k ls ugha fudkyk tk ldrk gS A vr% deh''kuj fu;qfDr gsrq tks izkFkZuk i= izkFkhZ us izLrqr fd;k gS] mldk dksbZ iz;kstu bl LVst ij Li"V ugha gksrk A ewy izkFkZuk i= esa izkFkhZ us lafonk bdjkj fnukad 9-6-83 ds ek/;e ls �9� vizkFkhZ dh tehu dk dCtk gksuk crk;k gS] ijUrq leLr Hkwfe ij dCtk ;k ekfydkuk gd izkFkhZ lfefr dks izkIr gks tkus dk mYys[k fnukad 9-6-83 dh lafonk esa ugha gS A vr% izkFkhZ lfefr dk 106 fufeZr edkuksa ds vykok ''ks"k Hkwfe dk ekSdk eqvk;uk djokus ;k deh''kuj dh fjiksVZ edkuksa ds vykok ''ks"k Hkwfe dk ekSdk eqvk;uk djokus ;k deh''kuj dh fjiksVZ i=koyh ij fy;s tkus dk vkSfpR; ;FkkfLFkfr vkns''k ds rgr fdlh Hkh izdkj ls ugha jgrk A odhy izkFkhZ }kjk izLrqr ,vkbZvkj 1988 lwizhe dksVZ ist 127 ij fuf.kZr Hkkjr dksfade dksy cuke fcgkj jkT; ds fu.kZ; esa ekuuh; mPp U;k;ky; }kjk fjV ;kfpdk esa ;FkkfLFkfr j[kus dk vkns''k ikfjr fd;k x;k] ml vkns''k ds ckotwn dks;yk [knku {ks= ls lkexzh gVk;k tkuk ;FkkfLFkfr vksns''k dk mYya?ku ekuk x;k gS A ,vkbZvkj 1989 enzkl ist 73 ij fuf.kZr Mh ,y Hk�s cke yfyFkk ds fu.kZ; esa ;g fu/kkZfjr fd;k x;k gS fd U;k;ky; ;FkkfLFkfr vkns''k ikfjr djs ml le; dCts dh D;k fLFkfr gS] ;g rF; i=koyh ij ysuk vko'';d crk;k x;k gS A �10� bl izdkj.k esa dCts dh fLFkfr ;Fkkor j[kus dh u izkFkhZ dh izkFkZuk Fkh] u gh vizkFkhZ us dCts dh ;FkkfLFkfr j[kus dh lgefr nh gS A dCtk o ekfydkuk gd ,d nwljs ds iwjd gS] ftl Hkwfe ij izkFkhZ lfefr us Hkou dk fuekZ.k ugha fd;k] ;gka lafonk vxzlj ugha gqbZ] o lhfyax dkuwu lekIr gksrs gh ml Hkwfe ds ekfydkuk gd vizkFkhZ dks fey x;z A �11� vr% dCts o ekfydkuk gd ds vHkko esa izkFkhZ us u rks dCts ckcr ;FkkfLFkfr cuk;s j[kus dh jkgr pkgh] u gh bl gsrq vksn''k ls iwoZ dksbZ vkosnu is''kf d;k] u gh vksn''k ds le; gh U;k;ky; ls fLFkfr i=koyh ij ykus dh izkFkZuk dh gS A tks Hkh ;FkkfLFkfr dk mYya?ku gksus ij izkFkhZ i{k oS/kkfud dk;Zokgh dj ldrk gS A mijksDrlexz foospu dsoy vkns''k 39 fu;e 7 flfoy izf�;k lafgr ds izkFkZuk i= ds fuLrkj.k ds iz;kstu ls fd;k x;k foospu ekuk tk;sxk A izFke n`"V;k bl foospu dk bl izdj.k dh vU; fdlh dk;Zokgh ij dksbZ izHkko ugha gksxkA"
For the convenience, the relevant portion in the impugned order has been underlined and numbers have been marked in the order so that the findings recorded by the trial judge in such proceedings may be clear.
This is very unfortunate that the learned trial Judge by exceeding his all jurisdiction and by breaking all the barriers of law after recording those findings as mentioned above in last observed that whatever has been observed on the points in the impugned order, they are only for the purpose of deciding the application under Order 39 Rule 7 CPC and it will not affect any other proceedings. This observation is only desperate effort of the learned Judge and to take shelter behind this observation. The findings appear to have been recorded purposefully. It appears and as observed above, the court below, while considering the application for appointment of Commissioner, could not have gone into all those facts which were mentioned and which were considered and on which, the findings have been recorded by the court below.
It will be worthwhile to mention a few facts only which will show that under what circumstances, the impugned order was passed by the court below. Because of dispute between the parties, by the order of this Court dated 12.9.2003 in S.B. Civil Misc. Arbitration Application No. 20/2003, sole arbitrator was appointed who passed the final award on 18.6.2005. The said award was challenged by the petitioner by filing objection petition u/s 34 of the Arbitration and Conciliation Act, 1996 (for short ''the Act of 1996'') . An application for interim injunction u/s 9 of the Act of 1996 was also submitted by the petitioner on which notices were issued to the respondents and on 20.8.2005, learned counsel for the respondent appeared and gave his consent that the interim order may be passed. Learned counsel for the respondent before the Trial Court stated that the respondents are ready to maintain status quo with respect to the subject property under the award. The Trial Court consequently passed the order directing to maintain the status quo with respect to the said property till the decision of the main proceedings obviously u/s 34 of the Act of 1996. On 22.8.2005, an application was submitted by the petitioner seeking appointment of Commissioner. The application is brief and copy of which is placed on record by the petitioner as Annexure-24. In this application, merely it is stated that the Court has passed the interim order on 20.8.2005 and the next date is 29.8.2005. Despite this interim order, the respondents are raising construction over the disputed property. The petitioner prayed that in this situation, the Commissioner may be appointed so that the actual site position may come on the record of the Court.
The said application was replied by the respondent and it was stated that the notice was served upon the counsel for the respondent and the counsel for the respondent is not in a position to contract his client and in fact, the notice should have been served upon the respondent. It is submitted that the petitioner wants to create some evidence and for that purpose, he has moved application for appointment of the Commissioner. It is also stated that the petitioner has not disclosed how the position is being changed by the respondent. In absence of the particulars in the application, the respondent will not be able to give proper reply to the application filed by the petitioner.
The thrust of contention was that the counsel for the respondent was not in position to contract his client and, therefore, he cannot file the reply. The Court did not appoint the Commissioner or reject the application of the petitioner forthwith on the ground of non-disclosure of facts in the application by the petitioner or on the ground that because of lack of particulars, the Commissioner cannot be appointed. The matter was adjourned and ultimately, on 29.8.2005, learned counsel for the respondent before the Trial Court submitted that reply filed by them on 22.8.2005 may be treated to be reply to the application filed by the petitioner under Order 39 Rule 7 CPC. On these facts, after hearing learned counsel for the parties, the court below passed the impugned order dated 31.8.2005.
Learned counsel for the petitioner vehemently submitted that the Trial Court exceeded its jurisdiction and has passed the impugned order in a manner so as the Trial Court is deciding the dispute between the parties either finally or deciding application for injunction or hearing appeal against the order of learned District Judge, Jodhpur dated 20.8.2005 and the court below recorded not only findings on various contentions issues but even recorded wrong findings and also decided the issues in favour of the non-petitioner which are subject matter of the objections u/s 34 of the Act of 1996. Learned counsel for the petitioner placed on record as many as 28 relevant documents which made the writ petition running in total 342 pages.
It will be relevant to mention here at this juncture that the order under challenge is the order which was passed under Order 39 Rule 7 CPC and the dispute between the parties with respect to the appointment of the Commissioner only resulting into such a bulky writ petition and this happened because of amendment made in CPC particularly in Section 115 CPC. In absence of those material, the petitioner must have thought that he may not be allowed to refer the documents which have not been submitted before the Court in writ petition. Be it as it may be. The fact remains is that the court below even went to the extent of commenting upon the order dated 20.8.2005 which was passed by the learned District Judge which was neither under challenge nor was under consideration as none of the parties had grievance against the said order. The learned judge concerned got this opportunity because of the fact that the learned District Judge was on leave and the matter went to the learned Additional District Judge No. 2, Jodhpur because of the reason that the petitioner insisted that it is matter of urgency and the Commissioner be appointed. At this time, if the court below had applied its mind to all the facts with respect to the merits of the case, then the Trial Court should have first looked into the relevant provisions of the Act of 1996 or if escaped its notice, then atleast in the relevant provisions of Order 39 Rule 7 CPC under which the application was filed and the order was sought by the petitioner.
It will be worthwhile to mention here that learned counsel for the respondent before this Court contended that the application filed by the petitioner should have been filed u/s 9 of the Act of 1996 and in that case. If the order would have been passed by the court below, the party would have got an opportunity to challenge the order by filing appeal. If it is so, it happened because the Trial Court did not look into the relevant provisions of law in which the order was sought and was passed. Apart from the fact that this Court is of the firm view that in either case, the court below should not have recorded the findings even in the name of prima facie findings and should have looked into only the relevant facts and the law which was relevant for the purpose of deciding the application. Even if before the court below, any of the parties argued, which according to the learned counsel for the petitioner, in fact did not argue and according to learned counsel for the respondent, all the facts were referred by the parties and the case was argued even then, it was the duty of the court below to control the argument and to confine itself to the jurisdiction available to the Court for the purpose of deciding the application. If the Court had not controlled the arguments of the parties, then the court below committed serious error and further committed error of law while passing the order.
As observed above, this Court is of the opinion that the Trial Court, if without knowing the scope, recorded the findings in para No. 3 of the impugned order, then it is not only bad but also dangerous position and if the court below was knowing the scope of the proceedings and even then, he passed the order, he has caused serious damage.
According to learned counsel for the respondent, since the petitioner did not disclose where rather at what location, the respondents are raising construction, therefore, the application was liable to be rejected. Such could have been an argument before the court below but that did not prevail upon the court below. If the argument of the learned counsel for the respondent is accepted, then also it appears that the respondent wants to save the impugned order on the grounds which was not considered by the court below while passing the order dated 31.8.2005. Therefore, on the application filed by the petitioner titled Under Order 39 Rule 7 CPC, the prayer of the petitioner was for appointment of Commissioner so that the actual factual position may come on the record. Neither the interlocutory order of injunction or appointment of the receiver were prayed by the petitioner nor that relief was even orally sought by the petitioner. In such circumstances, the court below only rejected the petitioner''s application on the grounds which are not sustainable in the eye of law, therefore, the order deserves to be set aside.
In view of the above, this writ petition is allowed, the order dated 31.8.2005 is set aside and the court below is directed to decide forthwith the application of the petitioner filed under Order 39 Rule 7 CPC in accordance with law and looking to the facts of the case within the jurisdiction available to the Court under the relevant provisions of law for appointment of Commissioner uninfluenced by the title of the application because of the reason that the title of the application cannot be a ground for rejection of the application.
Both the learned counsel for the parties requested this Court for fixing the date for presence of the parties. Accordingly, both the parties are directed to appear before the Trial Court on 22.9.2005.