AI Structured Summary
Not yet generated for this judgment
Judgment
Abhilasha Kumari, J.—RULE. Mr. Ankit Shah for Mr. Y.N. Ravani, learned Counsel waives service of notice of rule on behalf of the respondents.
This petition has been filed invoking the provisions of Articles 226 and 227 of the Constitution of India, with a prayer to quash and set aside order dated 23.04.2009 passed below Exhibit-99, in Special Civil Suit No. 282 of 2000, whereby the application of the petitioner for appointment of a Court Commissioner has been rejected.
Briefly stated, the facts relevant for the decision of the petition, are that the petitioner-original plaintiff, who is engaged in the business of manufacturing plastic goods, filed the above-mentioned suit for damages to the tune of Rs. 13,57,637/-, against original defendants(the respondents herein), on the ground that defective moulding machines have been supplied by the respondents.
2.1 According to the petitioner, an order was placed on 28.11.1998, through respondent No. 2 to respondent No. 1 for supply of three machines namely (1) Pet Priform Injection Moulding Machine, (2) Stretch blow Machine and (3) Injection Moulding Machine.
2.2 It is the case of the petitioner that the respondents delivered the three machines with proportional valve after ten months, from the date of placing the order. As a result thereof, the petitioner could not start production for the said period and has had to suffer loss of profit.
2.3 On 30th January, 2009, the petitioner filed application at Exhibit-99, for appointment of a Court Commissioner to examine the machinery supplied by the respondents. It was further prayed that an expert such as Professor of Mechanical Engineering in Visnagar Engineering College be appointed as Court Commissioner, in order to examine and give a report upon the mould and injection machines, which were lying in the factory premises of the petitioner. This application has been rejected by the trial Court by passing the impugned order, giving rise to the filing of the petition.
Mr. Viral J. Dave, learned Counsel for the petitioner has submitted as below:
(1) That the impugned order is erroneous and the observation of the Court below that the petitioner has remained silent for ten years and has not approached the Court earlier with the application is not germane, cogent or proper as, when the application was filed, the plaintiff''s evidence was going on and he had not given a closing pursis, therefore it cannot be said that there is delay in moving the application, as has been held by the Court below.
(2) That, the application for appointment of a Court Commissioner should be decided on its own merits, looking to the nature of dispute between the parties. In the present case, a scientific and technical issue is involved and, therefore, the Court below ought to have granted the said application, as it would have aided it to come to a just decision in the suit.
(3) That, the grounds contained in the order of the trial Court, to the effect that the machinery was purchased in the year 1999, the suit is filed in the year 2000 and the application for appointing a Court Commissioner has been moved in the year 2009 i.e. after about 10 years, and that the petitioner has not taken any steps to obtain report or opinion of an expert for the last ten years, in respect of the machinery that has been lying in his factory premises, is neither tenable nor just. Similarly, the other ground, on which the application has been rejected, that the petitioner wants to create evidence in his favour, is also not sustainable, in the facts and circumstances of the case.
(4) That, the petitioner has incurred heavy losses due to the defective mould supplied by the respondents and in order to assist the Court to arrive at a just decision in the suit, it is necessary that the mould be examined by a technically sound person, as prayed for by the petitioner. Further, it cannot be said that the application of the petitioner has been moved solely with a view to creating evidence, or to delay the suit, therefore, the impugned order may be quashed and set aside and the petition be allowed.
3.1 In support of the above submissions, the learned Counsel for the petitioner has placed reliance on the following decisions:
(1) Natabar Behera Vs. Batakrishna Das,
(2) Guru Govindu Vs. Devarapu Venkataramana,
(3) Karuppa Gounder v. Kuppusamy AIR 2009 Mad 122.
The petition has been opposed by Mr. Ankit Shah for Mr. Y.N. Ravani, learned Counsel for the respondents Nos. 1 and 2, who has supported the order passed by the trial Court by making submissions, as under:
(A) That, the machinery has been lying in the factory premises of the petitioner for the past ten years, as has been rightly noted in the impugned order. The application has been moved at a belated stage and even if the submission of the learned Counsel for the petitioner that, at the time of filing the application, the evidence of the plaintiff had not been closed, is considered the fact remains that the said application has been moved in the year 2009, whereas the suit has been filed in the year 2000. The machinery in question has been lying idle in the factory premises of the petitioner for about ten years, ever since it has been purchased by the petitioner in the year 1999, and now it cannot be said that the condition of the machinery at this stage would be same, when it was purchased.
(B) That, the order of the trial Court is perfectly legal and valid and does not deserve to be interfered with, as the Court has considered every aspect of the factual and legal position and has come to the conclusion that the provisions of Order 26, Rule 9 cannot be invoked by a party in order to create evidence or for its own convenience.
(C) That, at no point of time, has the petitioner tried to obtain the opinion or report of the technical expert, in order to examine the machinery and it is only at this belated stage that the application has been moved, which has been rightly rejected by the trial Court.
4.1 In support of the above submissions, the learned Counsel for the respondents has placed reliance on the following decisions:
(1) Mahendranath Parida Vs. Purnananda Parida and Others,
(2) Tulamaya Chettri and Anr. v. Yonarayan Pradhan and Ors. AIR 2004 Sikkim 39,
(3) B.S. Nazir Hassan Khan Vs. Aswathanarayana Rao and Others,
I have heard learned Counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other material on record.
5.1 At the outset, it would be fruitful to discuss the judgments relied upon by the learned Counsel for the petitioner, before coming to the rival submissions.
5.2 The first judgment relied on by the learned Counsel for the petitioner in ''Natabar Behera'' (Supra) is concerned, the facts of that case and the ratio arrived at by the Orissa High Court is totally different and not applicable to facts and circumstances of the present case. The issue therein was, whether the report of a hand-writing expert is admissible in evidence or not. After discussing the facts of the case, the Court held that the report of the hand-writing expert comes within the meaning of scientific investigation, thereby making order 26, Rule 10-A applicable.
5.3 So far as the judgment of the Andhra Pradesh High Court in ''Guru Govindu'' (Supra) is concerned, that was also a case wherein the issue was whether the application for sending documents to the hand-writing expert, being filed at a belated stage, could be considered or not. This judgment is also not helpful to the petitioner in the facts and circumstances, as obtaining in the case of the petitioner.
5.4 The third judgment of the Madras High Court in ''Karuppa Gounder'' (Supra) is also regarding delay in seeking opinion of the hand-writing expert which, according to the Madras High Court, should have been allowed in order to arrive at a just and firm conclusion. This judgment will also not come to the aid of the petitioner, as it turns upon its own peculiar facts, which are different, and not relevant to the case on hand.
5.5 The trial Court has rejected the application of the petitioner on the basis of clear and cogent reasons. The first ground on which the application has been rejected is that the machinery was purchased in the year 1999, the suit was filed in the year 2000 and the application for appointment of a Court Commissioner has been moved only on 30th January, 2009, when the examination-in-chief and cross-examination of the petitioner was over and two other witness had already been examined. According to the trial Court, the application has been moved by the petitioner in order to brush up certain statements which were made by him during cross-examination and, it has been concluded that as the petitioner has not taken steps to obtain the opinion of an expert and get the machinery examined, for the past ten years, the application for appointing a Court Commissioner has been moved belatedly only with a view to creating evidence. While passing the impugner order, the trial Court has come to a conclusion that, considering the facts and circumstances, it is not a case where it ought to invoke the powers vested in it, under the provisions of Order 26, Rule 10-A, as the machinery has been lying in the premises of the petitioner for the last ten years. Discussing the provisions of order 26, Rule 9, the trial Court has observed that the application could have been moved, before the evidence of the plaintiff began, and the said provisions of law cannot be utilized for creating evidence by the petitioners, in their favour. It is further observed by the trial Court that the petitioner is resorting to delaying tactics, which cannot be permitted in view of the directions of the Apex Court to decide pending cases expeditiously.
5.6 The judgment of the Orissa High Court in ''Mahendranath Parida'' (Supra) relied upon by the learned Counsel for the respondents, wherein the application under Order 26, Rule 9 was preferred, at the stage, when the evidence was complete and the case was fixed for argument, it has been held that the application could have been preferred earlier.
5.7 The judgment of the Karnataka High Court in ''B.S. Nazir Hassan Khan'' (Supra) and of the Sikkim High Court in ''Tulamaya Chettri and Anr.'' (Supra) relied upon by the learned Counsel for the respondents are also on the point of delay. The learned Counsel for the petitioner has sought to distinguish the above judgment by submitting that the application of the petitioner has been filed before closing of the evidence and, therefore, the judgment of the Karnataka High Court is not against him.
5.8 As regards the judgment of the High Court of Orissa ''Mahendranath Parida'' (Supra) relied upon by the learned Counsel for the respondents, it has been held that though the Court has discretion to appoint Court Commissioner under the provisions of Order 26, Rule 9, the said discretion has to be exercised in a judicious and sound manner, and not whimsically or capriciously and the Court may decline to exercise jurisdiction if the motion is made at a belated stage or is made in such circumstances justifying a refusal.
5.9 I have considered the submissions made by the learned Counsel for the respective parties, the contents of the impugned order and the judgments cited by the learned Counsel for the respective parties, in the considered view of this Court, the impugned order is a well-reasoned one and has been passed after taking into consideration the factual and legal position. The discretion whether to appoint a Court Commissioner, under the provisions of Order 26, Rule 9 or to direct a scientific investigation or appointment of a Court Commissioner, under the provisions of Order 26, Rule 10-A vests solely with the Court, to be examined if the Court considers it requisite or proper to do so and if it is found necessary to make such an inquiry. However, it is not mandatory for the Court to issue a commission to appoint a commissioner, merely on the asking of the parties. In the present case, it is not in dispute that the application has been moved after ten years and the machinery in question has been lying in the factory premises of the petitioner since 1999. The application has been filed at a belated stage when the cross-examination of the plaintiff was over and two witnesses had already been examined. This is one of the main grounds for rejection of the application by the trial Court.
5.10 The other ground is that, in view of the trial Court, the application has been moved for the purpose of creating evidence by the petitioner. Regarding this aspect, it has been held by the High Court of Rajasthan in Union of India (UOI) and Another Vs. Kripal Industries, as below,
The power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence where it can get evidence itself. Thus in a case where the claim of plaintiff that he is in possession of the disputed property is denied by the defendant by filing written statement, the disputed question of fact can be adjudicated upon by the Court after framing of issues and recording the evidence of parties. For such purpose assistance of Commissioner is neither necessary nor justified.
5.11 The principles of law laid down in the above decision which, in the opinion of this Court, squarely covers the present case. It transpires that the trial Court has properly considered the factual and legal aspects of the matter, while passing the impugned order. The reasons recorded by the trial Court are clear and cogent and in consonance with the relevant provisions of law. As the impugned order does not suffer from any illegality or manifest error of jurisdiction, the interference of this Court is not warranted.
For the aforestated reasons, the petition fails and is dismissed. Rule is discharged.