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Judgment
The third defendant in 0. S. 474 of 1983 on the file of the District Munsif of Tiruchengode, is the petitioner in this revision. The respondent is the
plaintiff. The plaintiff has filed the suit for a permanent injunction restraining the defendants and their men from in any manner interfering with the
plaintiffs peaceful possession and enjoyment of the suit properties by way of digging foundations, etc. The suit properties are in particular survey
numbers, viz., S. Nos. 289/2 to 289/19 in the concerned village. According to the plaintiff, the defendants are trying to put up foundations in the
western portion of S. Nos. 289/2 and 289/11. The third defendant had filed a written statement and, according to him, S. No. 289/1 belongs to
him and the foundations put up by him are only within the portion of S. No. 289/1.
Hence, the moot question that apparently comes up for adjudication on the pleadings is as to whether the foundations put up by the 3rd
defendant are within S. No. 289/1 or whether they have encroached upon the lands of the plaintiff. The 3rd defendant took out I. A. 571 of 1984
under 0. XXVI R. 9 read with S. 151 of the Civil P.C. hereinafter referred to as the Code, to appoint a Commissioner to inspect the suit
properties and S. No. 289/ 1, to note down as to whether the third defendant''s constructions are well within S. No. 289/1 and other physical
features that may be pointed out at the time of inspection and to submit a report with a plan drawn to scale. The court below has dismissed this
application, stating that there is no dispute with reference to the ownership of S. No. 289/1 and hence, there is no need for appointment of a
Commissioner and the parties can prove their case by evidence and documents. This order of the Court below is the subject matter of challenge in
this revision.
Mr. K. Sarvabhauman, learned counsel for the respondent, took a preliminary objection that the order of the Court below will not fall within the
category of ''a case decided as per S. 115 of the Code, and hence, it is not permissible for this court to exercise revisional powers. This
preliminary objection has got to be adverted to and decided before this court would proceed to adjudicate the other aspects involved in the
revision. It is no longer possible to claim that ''a case decided'' could relate only to the main suit and not any other proceedings between the
initiation of the suit and its final adjudication. In Major S.S. Khanna Vs. Brig. F.J. Dillon, , three learned Judges of the Supreme Court
countenanced as follows, while dealing with an interlocutory order by which the suit was held to be not maintainable (at p. 501) : -
The expression ''case'' is a word of comprehensive import; it includes civil proceedings other than suits, and is not restricted by anything contained
in the section to the entirety of the proceeding in a civil court. To interpret the expression ''case'' as an entire proceeding only and not a part of a
proceeding would be to impose a restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the
supervisory jurisdiction are not, subject and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may
result in the perpetration of gross injustice. The expression ''case'' includes a suit, but in ascertaining the limits of the jurisdiction of the High Court,
there would be no warrant of equating it with a suit alone.
From the inception of the suit until it is disposed of one way or the other, innumerable proceedings crop up and innumerable rights and obligations
are claimed by and cast upon the parties and they have to be decided in such proceedings and if, in fact, some right or obligation of the parties in
controversy gets decided in the course of such proceedings, that would amount to ''a case decided''.
In Baldevdas Shivlal and Another Vs. Filmistan Distributors (India) P. Ltd. and Others, the learned Judges of the Supreme court dealt with an
order of the trial court disallowing objections to certain questions in cross-examination, and the learned Judges held that it would not be a case
decided and that the High Court was in error in exercising the powers of revision. After adverting to the ratio with regard to the expression ''case''
enunciated in Major S.S. Khanna Vs. Brig. F.J. Dillon, , it has been observed as follows -
.......... A case may be said to be decided if the Court adjudicates for the purposes of the suit some right or obligation of the parties in
controversy; every order in the suit cannot be regarded as a case decided within the meaning of S. 115 of the Civil P.C.
- Page 410
This decision of the Supreme Court by itself does not delineate extensively as to the adjudication of what type of rights or obligations of the parties
would amount to a case decided. The learned Judges dealt with, as stated above, a case where the trial court disallowed objections to certain
questions in cross examination, and it was held that it is not a case decided.
In Ramgulam Choudhary and Others Vs. Nawin Choudhary and Others, Untwalia, J. as he then was, dealt with an order allowing the plaintiff to
adduce further evidence after the defendant closed his case and the learned Judge opined that it was not a case decided. The following
observations of the learned Judge are relevant as they do indicate that from the date of institution of the suit until it is ultimately decided one way or
the other, the possibility of orders getting passed in proceedings in between is always there :
...... It is well known that from the date of institution of a suit or a proceeding and until its conclusion by the trial Court, several orders are made
from time to time. Some of them may be erroneous orders and even may smack of errors of jurisdiction. But ail interlocutory orders, as the
Supreme Court has pointed out, cannot be taken to be a case decided within the meaning of S. 115 of the Code. A line has to be drawn between
the two types of orders, although both of them are made during the pendency of the suit or proceeding. It has to be noticed whether a particular
order is an adjudication by the trial Court deciding for the purpose of a suit or proceeding some right or obligation of the parties in controversy, or
whether it is an order which is not of that kind.
- Page 501
But, the decisive factor to find out the revisability or otherwise of such orders is to determine whether by such orders some right or obligation of
the parties in controversy gets decided. The right or obligation need not necessarily have a nexus to the main lis and in the progression of the suit
towards its final adjudication and the final resolution of the controversy between the parties. Very many rights and obligations do crop and they
have foundations both in substantive law as well as in procedural law and, if they get decided by such interlocutory orders, they are certainly
revisable. Untwalia, J. as he then was, in the case cited above, by way of obiter, delineated a few examples of orders which could be revisable in
revisional jurisdiction of-the High Court as ''cases decided'' in the following terms : -
..............I may endeavour to give a few examples to make myself clear, as to on which side of the line a particular order would lie. I would like to
point out that an order in relation to interim injunction or appointing a receiver, when the case comes to this Court after the matter has been
decided by the lower appellate Court, or an order of stay staying the hearing of a suit or proceeding, or an order made under S. 11-A of the Bihar
Buildings (Lease, Rent and Eviction) Control Act 1947, and possibly an order in relation to amendment of pleadings, could be the types, of orders
in which it can be said that the order decides the case as it determines some right or obligation of the parties in controversy, and if there is any error
of jurisdiction in that order, the High Court may interfere with it.
- Page 581
The learned Judge also referred to some cases where the orders passed would not be revisable in the following terms :
As for example, some question in examination or cross-examination is disallowed, while it ought to have been allowed, some document is wrongly
admitted in evidence, while it ought not to have been admitted, a pleader commissioner''s report is confirmed or set aside and further investigation
ordered; these will be the types of interlocutory orders which to my mind cannot be interfered with by the High Court within the meaning of S. 115
of the Code.
- Page 502
Of course, they are not exhaustive and they only form example.
The object of local investigation under 0. XXVI, R. 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 0. XXVI, R. 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
XXVI, R. 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. Untwalia, J. as he then was, in the case cited above enumerated examples on either side.
Mr. K. Sarvabhauman, learned counsel for the respondent, relies on a pronouncement of a Bench of the High Court of Punjab and Haryana in
Harvinder Kaur and Another Vs. Godha Ram and Another, , where the Bench held that an order refusing to appoint a local Commissioner under
XXVI, R. 9 of the Code is not a case decided and hence, not revisable. A restricted interpretation has been adopted by the Bench with regard
to ''some right or obligation of the parties in controversy''. The learned Judges took the view that such an order did not decide any issue or some
right or obligation of the parties in controversy. The learned Judges have not adverted to the place of 0. XXVI, Rr. 9 and 10,of the Code, and the
right of the parties to adduce evidence in substantiation of their case and the implication of the denial of such right. I am not able to adhere to the
ratio of the Bench of the High Court of Punjab and Haryana, in view of the reasons already expressed by me.
The above discussion eschews the preliminary objection taken by the learned counsel for the respondent.
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 S. 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 I 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 6f 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 S. 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.
For the reasons stated above, this revision is allowed. No costs. The Court below will appoint the Commissioner within a period of two weeks
from the date of receipt of a copy of this order, call upon the Commissioner to make a local inspection and submit his report within a period of two
weeks thereafter and proceed on with the matter without any further delay.
Revision allowed.