Gopal Dass and ors. Vs. Bismanchali - Court Judgment

SooperKanoon Citationsooperkanoon.com/891792
SubjectCivil
CourtHimachal Pradesh High Court
Decided OnMay-20-2009
Judge Dev Darshan Sud, J.
Reported in2009(2)ShimLC250
AppellantGopal Dass and ors.
RespondentBismanchali
DispositionAppeal allowed
Cases ReferredNasir Ahmad v. Sarfaraz
Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 14, rule 2 [as amended by amending act of 1976]: [v.k. gupta, cj, deepak gupta & surjit singh, jj] preliminary issue of law and fact court framing all issues both of law and facts together and also tried all the issues together, including the issue relating to jurisdiction of court held, except in situations perceived or warranted under sub-rule (2) of rule 2 of order 14 where a court in fact frames only issues of law in the first instance and postpones settlement of other issues, clearly and explicitly in situations where the court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the court to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. this course of action is not available to a court because sub-rule (1) does not permit the court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law. sub-rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the court covering all the issues framed in the suit.dev darshan sud, j. 1. this appeal has been preferred by the defendant against the judgment and order of the learned district judge passed in appeal against the judgment of the learned sub-judge first class, rejecting the objections preferred by the appellant-defendant herein to the report of the local commissioner in proceedings for passing of final decree in partition proceedings.2. in appeal, one of the grounds raised by the appellant herein was that no opportunity was given to him to lead evidence in support of the objections filed. the learned district judge rejected this plea holding that the contention is misplaced as the court is not required to settle any issue on the objections but what the law contemplates is for providing of adequate opportunity of hearing. the appeal was accordingly dismissed. the learned court has gone to discuss the report of the local commissioner in some detail and has accepted it.3. this appeal was admitted on the following substantial questions of law:1. when some of the joint properties have been left out, could the suit property be taken into consideration in the proceeding for final decree which would materially affect the mod of partition to be suggested by the local commissioner? was it not the duty of the local commissioner, appointed for suggesting the mode of partition of the joint property, to take into consideration the rival claims of the parties for making improvements in the joint property? was not the local commissioner duty bound to assess the compensation for the improvements made?2. when the local commissioner has submitted the mode of partition for the joint property without making a reference as envisaged under the code of civil procedure, could such report be accepted at its face value by rejecting the objections made by the respective parties to the said report without affording any opportunity either to cross-examine the local commissioner or for leading evidence to show that the mode suggested is wholly inequitable, illegal, erroneous and perverse?3. whether the report submitted by the local commissioner could not be accepted as it was absolutely opposed to the very rules of partitioning the joint property and absolutely against the provisions of partition act? was it not the duty of the local commissioner to consider while suggesting the mode of partition that each divided unit could be utilized beneficially without interference with the unit allotted to other party? in the absence of such suggestions was not it incumbent for the court below to have rejected as reference and directed a fresh local commissioner to be appointed to submit a proper report in accordance with law?question no. 2 is being taken up for decision as it would put the controversy to rest.4. this court in om parkash v. ved parkash and ors. : air 2000 hp 45, while inter alia following the ratio in courhari das and anr. v. jaharlal seal and anr. : air 1957 calcutta 90, has held:(12) dealing with the meaning of the words 'to hear' appearing in sub-rule (2) of rule 14 of order 26, a division bench of the lahore high court in nasir ahmad v. sarfaraz-ur-rahman khan air 1935 lahore 501, has held that the words 'to hear' implies that the parties are entitled to substantiate their objections. in such cases as a rule of practice the local commissioner should first be examined with reference to the objections, if any, and if it appears from the statement of the commissioner that there is ground for further inquiry into any matter which is raised in the objections, then the parties should be allowed to produce evidence or the commissioner be directed to amend his report accordingly.5. the reasoning of the learned district judge that opportunity was not asked for and hence cannot be granted cannot be accepted. the ratio of the judgment of this court is clear that it is also the duty of the court to grant sufficient opportunity to the parties to lead evidence in support of their respective objections. there is no dispute that the court was bound in law to have provided an opportunity to the defendants/appellants herein to lead evidence in support of the objection filed to substantiate that the report was either not in concord with the factual situation or that it deserved to be varied, set aside, altered or changed. the view taken by the learned district judge is too technical and cannot be sustained.6. i, therefore, hold that sufficient opportunity was not granted to the appellants to lead evidence in support of their contention that the report could not be accepted. at least, examination of the commissioner was required and if further required, evidence over and above that of the commissioner. this question is accordingly decided in favour of the appellants and against the respondents.7. questions 1 and 3 are redundant, in view of what i have held above.8. this appeal is accordingly allowed. the judgment and decree of the courts below are quashed and set aside. the parties are directed to appear before the learned district judge, mandi on 22nd june, 2009, who shall readmit the appeal on its record and shall thereafter provide ample opportunity to the appellants herein to show / demonstrate that the objections filed deserved to be accepted. needless to say, the respondent herein shall also be provided with adequate opportunity to lead evidence in support of the report of the local commissioner and to show that it does not require any variation, alteration etc. and that what has been held by the commissioner is just and equitable. there shall be no order as to costs. pending application(s) shall stand disposed of and interim order(s) vacated.
Judgment:

Dev Darshan Sud, J.

1. This appeal has been preferred by the defendant against the judgment and order of the learned District Judge passed in appeal against the judgment of the learned Sub-Judge First Class, rejecting the objections preferred by the appellant-defendant herein to the report of the Local Commissioner in proceedings for passing of final decree in partition proceedings.

2. In appeal, one of the grounds raised by the appellant herein was that no opportunity was given to him to lead evidence in support of the objections filed. The learned District Judge rejected this plea holding that the contention is misplaced as the Court is not required to settle any issue on the objections but what the law contemplates is for providing of adequate opportunity of hearing. The appeal was accordingly dismissed. The learned Court has gone to discuss the report of the Local Commissioner in some detail and has accepted it.

3. This appeal was admitted on the following substantial questions of law:

1. When some of the joint properties have been left out, could the suit property be taken into consideration in the proceeding for final decree which would materially affect the mod of partition to be suggested by the Local Commissioner? Was it not the duty of the Local Commissioner, appointed for suggesting the mode of partition of the joint property, to take into consideration the rival claims of the parties for making improvements in the joint property? Was not the Local Commissioner duty bound to assess the compensation for the improvements made?

2. When the Local Commissioner has submitted the mode of partition for the joint property without making a reference as envisaged under the Code of Civil Procedure, could such report be accepted at its face value by rejecting the objections made by the respective parties to the said report without affording any opportunity either to cross-examine the Local Commissioner or for leading evidence to show that the mode suggested is wholly inequitable, illegal, erroneous and perverse?

3. Whether the report submitted by the Local Commissioner could not be accepted as it was absolutely opposed to the very rules of partitioning the joint property and absolutely against the provisions of Partition Act? Was it not the duty of the Local Commissioner to consider while suggesting the mode of partition that each divided unit could be utilized beneficially without interference with the Unit allotted to other party? In the absence of such suggestions was not it incumbent for the Court below to have rejected as reference and directed a fresh Local Commissioner to be appointed to submit a proper report in accordance with law?

Question No. 2 is being taken up for decision as it would put the controversy to rest.

4. This Court in Om Parkash v. Ved Parkash and Ors. : AIR 2000 HP 45, while inter alia following the ratio in Courhari Das and Anr. v. Jaharlal Seal and Anr. : AIR 1957 Calcutta 90, has held:

(12) Dealing with the meaning of the words 'to hear' appearing in Sub-rule (2) of Rule 14 of Order 26, a Division Bench of the Lahore High Court in Nasir Ahmad v. Sarfaraz-ur-Rahman Khan AIR 1935 Lahore 501, has held that the words 'to hear' implies that the parties are entitled to substantiate their objections. In such cases as a rule of practice the Local Commissioner should first be examined with reference to the objections, if any, and if it appears from the statement of the Commissioner that there is ground for further inquiry into any matter which is raised in the objections, then the parties should be allowed to produce evidence or the Commissioner be directed to amend his report accordingly.

5. The reasoning of the learned District Judge that opportunity was not asked for and hence cannot be granted cannot be accepted. The ratio of the judgment of this Court is clear that it is also the duty of the Court to grant sufficient opportunity to the parties to lead evidence in support of their respective objections. There is no dispute that the Court was bound in law to have provided an opportunity to the defendants/appellants herein to lead evidence in support of the objection filed to substantiate that the report was either not in concord with the factual situation or that it deserved to be varied, set aside, altered or changed. The view taken by the learned District Judge is too technical and cannot be sustained.

6. I, therefore, hold that sufficient opportunity was not granted to the appellants to lead evidence in support of their contention that the report could not be accepted. At least, examination of the Commissioner was required and if further required, evidence over and above that of the Commissioner. This question is accordingly decided in favour of the appellants and against the respondents.

7. Questions 1 and 3 are redundant, in view of what I have held above.

8. This appeal is accordingly allowed. The judgment and decree of the Courts below are quashed and set aside. The parties are directed to appear before the learned District Judge, Mandi on 22nd June, 2009, who shall readmit the appeal on its record and shall thereafter provide ample opportunity to the appellants herein to show / demonstrate that the objections filed deserved to be accepted. Needless to say, the respondent herein shall also be provided with adequate opportunity to lead evidence in support of the report of the Local Commissioner and to show that it does not require any variation, alteration etc. and that what has been held by the Commissioner is just and equitable. There shall be no order as to costs. Pending application(s) shall stand disposed of and interim order(s) vacated.