Kalyan Santram Kawade and Others Vs. Khanderao alias Khandu Ganpati Kawade and Others - Court Judgment

Oral Judgment:

1. Heard the learned Advocates for the respective sides. Rule. Rule made returnable forthwith and heard finally.

2. The petitioners are challenging an interlocutory order dated 26/02/2014 below Exh.18, passed by the Joint Civil Judge, J.D. Washi, Dist. Osmanabad.

3. Contention of the petitioners is that the respondents have preferred RCS No.268/2013 before the Trial Court, seeking a declaration of ownership and perpetual injunction in respect of land Survey No.29/A admeasuring 2 Hectre 2 R, Survey No.30/A admeasuring 41R and Survey No.29/E to the extent of ½ share admeasuring 44R. These claims alongwith other connected claims are set out in the claim petition of the respondents especially from paragraph Nos. 1 to 7. The petitioners have filed their reply / written statement to the plaint. An application for temporary injunction and temporary relief is admittedly not pending on the file of the Trial Court.

4. The respondents moved an application below Exh.18 seeking appointment of a Court Commissioner. According to the petitioners, the said application is a mere repetition of the avernments made in the plaint. It is pointed out that the said application is primarily based on an allegation of encroachment as well as divisions and sub divisions in the suit property as is set out in paragraph no.7 of the plaint.

5. According to the petitioners, without framing of issues and without recording the oral evidence of the litigating parties, the Court Commissioner could not have been appointed. It is further submitted that the contentions of respondents in paragraph No.7 of the plaint, which happen to be reproduced in the application Exh.18 does not take the case of the respondents any further. When there are no specific pleadings as regards encroachment and when the respondents have specifically denied the allegations of the plaintiffs in their written statement, appointment of Court Commissioner amounts to the Trial Court overstepping its jurisdiction.

6. The petitioners have relied upon the reported as well as unreported judgments/orders of this Court in support of its case. The petitioners have prayed for quashing and setting aside of the impugned order since it amounts to collecting evidence.

7. Learned Advocate for the respondents submits that it has been specifically pleaded in the plaint that there are divisions and sub divisions in the suit property. Details of the same have been set out from paragraph No.1 to 8 of the plaint. It is also mentioned in the plaint that the defendants are likely to cause an encroachment as well as obstruction to the original plaintiffs. Application for appointment of Court Commissioner was filed in view of the pleadings of the respondents in their plaint. Appointing a Court Commissioner is a discretionary relief and the Trial Court has properly exercised its discretion judiciously under Order 26 Rule 9 of the C.P.C. When the Trial Court finds that the Court Commissioner would assist in the adjudication of the matter by submitting his report alongwith a map, this Court should not interfere in its extraordinary jurisdiction, when discretionary order has been passed.

8. Learned Advocates for the respective sides have taken this Court through the petition paper book and especially the plaint and the written statement filed by the parties. It is not disputed that the proceedings before the Trial Court are at the stage of framing of issues.

9. Mr.Choukidar, learned Advocate for the petitioners has relied upon the judgment of this Court in the case of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and others, reported at 2001(1) Bom.C.R. 800. In the said case, a Court Commissioner was appointed and empowered to visit and inspect the spot being the suit field and to submit a report regarding the actual possession of the suit field. This was held to be amounting to collecting of evidence as regards the possession of the suit land. It is, in these circumstances, that this court had set aside the order passed by the Trial Court appointing the Court Commissioner.

10. The petitioners have further relied upon the judgment of this Court in the matter of Syed Mushtaque Ahmad Syed Ismail and others Vs. Syed Ashique Ali Khan Haidar Ali, reported at 2012(2) Bom.C.R. 790. In this case, the Court Commissioner was appointed to submit a report as regards the possession and the extent of construction carried out when the suit was with regard to a Sale Deed and the relief claimed was of injunction as regards possession of the suit portion. This Court concluded that consequential reliefs would be available to the plaintiff in the event the suit was allowed and appointing a Court Commissioner to inspect the extent, to which construction is carried out, tantamounts to collecting evidence. The order of the Trial Court, appointing Court Commissioner, was therefore set aside in the facts of the said case.

11. The petitioners have also relied upon an unreported judgment of this Court dated 12/06/2013 in Writ Petition No.6700/2011, wherein a Court Commissioner was appointed before a decision on Exhibit 5 was handed down. This Court, therefore, concluded that when an application Exh.5, seeking temporary injunction and interim reliefs was pending, appointment of Court Commissioner would be premature under Order 26 Rule 9 of C.P.C. Similar findings were arrived at in the judgment of this Court dated 07/01/2012 delivered in Writ Petition No.9089/2011.

12. The petitioners have also relied upon an unreported judgment of this Court dated 20/09/2013 wherein the issue was with reference to a matter under the Maharashtra Rent Act. A Court Commissioner, in the form of an Architect, was appointed. Notice u/s 28 was not given. This Court, in the facts of the said case, concluded that though appointment of Court Commissioner Under Order 26 Rule 9 of C.P.C. is a discretionary power, the same has to be exercised in a judicious manner.

13. In the instant case, the petitioners have specifically averred of there being divisions and sub-divisions in the property at issue. So far as the boundaries and adjacent properties are concerned, the petitioners, in paragraph No.5 of their written statement have confirmed the same, but have disputed the divisions and sub-divisions in the suit property.

14. By the impugned order, the Trial Court, while exercising its discretion, has arrived at a conclusion that since the plaintiff has alleged of probable encroachment and has made averments as regards the divisions and sub-divisions in the suit properties, a Court Commissioner would be of assistance to the Court especially by placing reliance upon the records and map available with the concerned authorities.

15. Specific directions have been given to the Dy. Superintendent of Land Records in the impugned order as regards the extent to which the Court Commissioner was to perform his activity and was to submit his report along with the map pertaining to the suit property. In its wisdom, the Trial Court felt it necessary to so appoint the Court Commissioner, who would assist in placing on record the map pertaining to the suit property and his report in relation to the divisions and sub-divisions. Nevertheless, it is always open for an aggrieved party to question such report before the Trial Court.

16. Mr.Choukidar is justified in submitting that a Court commissioner can not and ought not to be appointed with the purpose of collecting evidence and that such an appointment, normally does not precede the recording of evidence. Nevertheless, this being a discretionary power, I am of the view that it should be left to the Trial Court to assess the necessity of appointment of a Court Commissioner, but surely avoid such appointment if it is to collect evidence. Interference in the impugned order by this Court is warranted only when a case of grave injustice is made out by the petitioner.

17. In the impugned order, the Trial Court has not directed the Court Commissioner to go into the disputed questions or contentious issues. The Court Commissioner has been specifically directed to submit his report as regards the factual position of the suit property, supported with a map, which is available with the concerned Authorities.

18. I do not find that the impugned order would lead to collecting of evidence. So also, if the factual position as regards the suit property as to whether it is divided or sub divided, is placed before the Trial Court, both the litigating parties as well as the Court would be assisted in the proper adjudication of the matter. In my view, the facts of this case and the restrictions placed upon the Court commissioner by the Trial Court are distinguishable from the facts emerging from the judgments relied upon by the petitioners, which, therefore, do not assist them.

19. The respondents have placed reliance upon the judgment of this Court in the matter of Bhupendra Vs.Homraj, reported at 2014(4) Mh.L.J. 231. Specific reference is made to the contents of paragraph No.5 of the said judgment, by which the appointment of a Court Commissioner under Order 26 Rule 9 of the C.P.C. has been upheld since the Commissioner was directed by the Trial Court to prepare a map showing the boundaries of the suit property and the land along with its measurements.

20. Paragraph No.5 of the judgment (supra) reads as follows:

“Learned Advocate for the appellant submitted that these cases cited by the learned Advocate for the respondent are distinguishable. In present case, where the plaintiff is seeking to protect his property on the strength of ownership and in a case, where documentary evidence is in the form of sale deed in respect of suit property indicating prima facie ownership and possession of the plaintiff and he alleges encroachment over the suit property and seeks possession of the encroached portion from the defendant who may have taken law into his hands, in such exceptional cases, where real controversy between parties is in the nature to determine the boundary dispute or fix identity of the suit land, the court is duty bound to insist upon the parties to file accurate map in respect of the suit property. My attention is invited to the ruling in Yeshwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar (MANU/MH/1474/2009 : 2010(3) Mh.L.J.956) : (2010(2) ALL MR 694) in which this Court considered earlier judicial precedents including Ram Kishore Sen and ors. Vs. Union of India and ors. (MANU/SC/0052/1965 : AIR 1966 SC 644) and observations made by the Hon'ble Supreme Court of India in paragraph 11 and 12 thereof. Judicial precedents in Ushabai Sharadchandra Vs. Wasudeo and ors. (MANU/MH/0993/2003 : 2004(2) Mh.L.J. 594) and Vachhalabai W/o Kundlik Gavane and ors. Vs.Chinkaji S/o Malhari Jadhav and ors. (MANU/MH/0341/2012 : 2012(4) Mh.L.J. 198) : (2012(3) ALL MR 91) are also cited in order to submit that trial court in such cases of boundary dispute can appoint public official like Taluka Inspector of Land Records / District Inspector of Land Records by invoking power under Order XXVI, Rule 9 of Code of Civil Procedure so that evidence of the Commissioner in the form of report submitted by public official concerned regarding measurement of the suit land is considered for to decide the real controversy between the parties regarding boundary of the suit property or land on the basis of authenticated evidence instead of technically dismissing the suit on the ground that there was no oral evidence in such cases. Normally, it is true that the court of law would not exercise its discretion for to assist the plaintiff to prove fact as to who is in possession if it is a disputed fact. However, the cases of boundary dispute are clearly distinguishable in which the identity of land, measurement thereof and area of the land is needed to be considered preferably on the basis of the authentic evidence and map of the land drawn by competent public official on behalf of the Central or State Government, the trial court is benefited by such map of the land authentically drawn and produced in order to decide the suit correctly, effectively and finally in the larger interest of justice so that no such dispute shall remain pending in courts for long time in respect of alleged encroachments over the suit property. It is, therefore, always desirable to get the suit land or field measured by an expert or competent public official to find out the area of the suit land encroached upon, more so, when oral evidence cannot help the court when it is in the form of words against words by rival parties. Considering the implication of Section 83 of the Indian Evidence Act, presumption can be drawn in respect of map or plan drawn by competent public official in such cases so as to resolve the controversy between the parties. It is, therefore, decided by this court earlier also, that it is always desirable to insist upon the parties in such cases, to have a joint measurement in respect of the suit land or joint property, then the trial court upon evidence led before it can decide the real controversy in the suit finally, effective and in accordance with law. In cases where parties are at dispute or not in agreement with the map or plan, Court Commissioner can certainly be appointed in order to prepare a map or plan in respect of the suit property in order to assist the court. There is no question of assisting the plaintiff to collect evidence of disputed factum of possession in such cases. Therefore, rulings pointed out on behalf of the respondent are accordingly distinguishable in such cases and would not militate against the appellant. Because in the absence of map or plan, in cases of boundary dispute, even if decree is passed, it would be meaningless as it may remain in executable in absence of authentic map. For the aforesaid reasons, therefore, the impugned judgment and order is required to be quashed and set aside with necessary directions for just decision in the case.”

21. The petitioners have contended that the impugned order is against the principles of law and needs to be interfered with in the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, 1950. The Apex Court (5 Judges Bench) has laid down the Law on this point in the case of Syed Yakoob V/s K.S.Radhakrishan and others, reported at AIR 1964 SC 477.

Paragraph Nos. 7 and 8 of the judgment read thus:

7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or Tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Syed Ahmed Ishaque ), Nagendra Nath Bora v. The Commissioner of Hills Division and Appeals, Assam ([1958] S.C.R. 1240.), and Kaushalya Devi v. Bachittar Singh.

8. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record. It may also be that in some cases, the impugned error of law may not be obvious or patent on the face of the record as such and the Court may need an argument to discover the said error; but there can be no doubt that what can be corrected by a writ of certiorari is an error of law and the said error must, on the whole, be of such a character as would satisfy the test that it is an error of law apparent on the face of the record. If a statutory provision is reasonably capable of two constructions and one construction has been adopted by the inferior Court or Tribunal, its conclusion may not necessarily or always be open to correction by a writ of certiorari. In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of a the legal provision which is alleged to have been misconstrued or contravened.

22. Similarly, the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai, reported at 2003(6) SCC 682, has held in paragraph Nos. 38(1 to 9) and 39 as follows:

38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-

(1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.

(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.

(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.

39. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.

23. In the light of the above, I do not find any perversity in the impugned order passed by the Trial Court. The petition, being devoid of merit, is therefore dismissed. Rule is discharged with no order as to costs.