Heard Shri Rama Shanker Singh, learned counsel for the petitioner and Shri Pritish Kumar, learned counsel for respondents no.1 to 4.
Through these proceedings instituted under Article 226 of the Constitution of India, the petitioner has attempted to impeach the order dated 26.08.2014, passed by the Court of First Additional Judge of Small Causes, Lucknow, whereby the application moved by the petitioner under Order 26 Rule 9 of the Code of Civil Procedure with the prayer to issue an appropriate direction to the Engineer-in-Chief, Public Works Department, Lucknow and Collector, Lucknow, for furnishing the panel of recognized valuer under the rules framed by the State Government for valuation of the property in suit, has been rejected. The said application, in fact, was moved by the petitioner to issue a Commission for the purposes of ascertaining the market value of the property in the suit in terms of the provisions contained in Order 26 Rule 9 of the CPC.
The facts which are necessary for disposal of the instant writ petition are summed up as under:
That a suit for declaration and mandatory injunction has been filed by the father of opposite party nos. 1 to 4, where the petitioner has been arrayed as defendant no.2, in respect of the property described in the plaint.
The defendant no.2 objected to the valuation of the suit property as disclosed by the plaintiff and accordingly an issue, namely, issue no.8 was framed by the learned trial court to the effect that as to whether the suit has been undervalued. Since the defendant no.2-petitioner objected to the valuation of the suit as described in the plaint, burden to prove the same lies on him. Accordingly, the defendant no.2-petitioner appointed a valuer to ascertain the valuation of the suit property and submitted his report before the court concerned. An application, namely, Application No.130-Ga was moved by the defendant no.2-petitioner to permit him to cross-examine the valuer whose report was adduced for the purpose of ascertaining the valuation of the property in suit and in support of the issue in favour of the defendant no.2-petitioner that the suit is undervalued. The said application was rejected by the learned trial court by means of the order dated 19.08.2010 and the property was valued at Rs. 1,00,00,000/- (Rs. one crore). Against the aforesaid order dated 19.08.2010, passed by the learned trial court, the plaintiff as well as defendant no.2 preferred Revision Petitions bearing No.116 of 2010 and 114 of 2010. Both the revision petitions were decided by a common judgment and order dated 03.12.2012 passed by this Court. The revision petitions filed by the plaintiff as well as defendant were allowed and the order dated 19.08.2010 passed by the learned trial court was set aside. The learned trial court was further directed to decide the Application Paper No.130-Ga/133-C and the issue relating to valuation, strictly in accordance with law and settled norms of justice. The operative portion of the judgment and order dated 03.12.2012, passed by this Court while allowing the aforesaid two revision petitions runs as follows:
"Revisions are accordingly allowed. Impugned order is set aside and the learned Trial Court is directed to decide the application paper no.130-C/133-C and issue relating to valuation, strictly in accordance with law and settled norms of justice."
After disposal of the aforesaid revision petitions, the application moved by the defendant no.2-petitioner for summoning the valuer for cross-examining him was allowed by the learned trial court by means of an order dated 10.04.2014. The valuer accordingly was permitted to be cross-examined and an affidavit of the valuer was also filed by the defendant. Thereafter, an application by defendant no.2-petitioner was moved on 13.08.2014 for appointment of the Commission under Order 26 Rule 9 read with Section 151 of the CPC for the purposes of ascertaining/eliciting the market value of the suit property. The said application has been rejected by the learned trial court by means of the order dated 26.08.2014. It is this order dated 26.08.2014 passed by the learned trial court which is the subject matter of challenge in this petition.
Learned counsel for the petitioner has very strenuously submitted that by rejecting the application moved by the petitioner under Order 26 Rule 9 of the CPC for appointment of Commission, learned trial court has completely erred in law inasmuch as it has ignored the directions issued by this Court in its judgment and order dated 03.12.2012, whereby the learned trial court was directed to decide the Application No.130-Ga and also the issue relating to valuation, strictly in accordance with law and settled norms of justice. His emphasis is on the phrase "strictly in accordance with law and settled norms of justice" occurring in the operative portion of the judgment and order dated 03.12.2012.
Submission of learned counsel for the petitioner is that for the purposes of ascertaining the market value of the suit property, the provisions contained in Order 26 Rule 9 of the CPC is to be followed and for the said purpose the Commission has to be issued by the learned trial court only to a person determined by the State Government under Rules in terms of the provisions contained in proviso appended to Rule 9 of Order 26 of the CPC. He has further emphasized his reliance on the phrase " the court shall be bound by such rules" occurring in the proviso appended to Rule 9 of Order 26 of the CPC. In sum and substance, he has argued that the market value of the suit property can be ascertained only by issuing a Commission by the court to a person appointed as such by the State Government under the rules framed for the said purpose and not by any other mode. In this view, his submission is that the learned trial court by rejecting the application moved by the petitioner-defendant no.2 has not acted in accordance with law and settled norms of justice as was mandated by this Court in its judgment and order dated 03.12.2012, and hence, the order deserves to be set aside.
On the other hand, learned counsel appearing for respondent nos. 1 to 4 has argued that for the purposes of payment of court fee, valuation of the suit property has to be determined in terms of the provisions contained in Section 7 of the Court Fee Act and further that since the report of a valuer appointed by the petitioner-defendant himself is already on record of the learned trial court and the valuer has also filed his affidavit and has also been cross-examined, as such, there was no justification for the court below to have issued a Commission for the purposes of eliciting the market value of the suit in question.
The issue which needs consideration of this Court, as has emerged from the arguments advanced by learned counsels appearing for the respective parties, is as to whether the Commission by the learned trial court has to be mandatorily issued on mere asking of a party for the purpose of ascertaining the market value of the property in suit or the Commission under Order 26 Rule 9 of the CPC can be issued only in case the learned trial court is satisfied that for the purposes of ascertaining the market value, issuance of Commission is a requisite step.
The provisions of Rule 9 of Order 26 of the CPC is quoted below:-
" 9.Commissions to make local investigations:- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
A perusal of the aforesaid quoted provisions of Rule 9 of Order 26 of the CPC makes it abundantly clear that an order of issuing Commission for the purposes of ascertaining the market value can be passed only and only in case it is deemed to be requisite or proper by the learned court concerned. The opening words in Rule 9 are "in any suit in which the court deems a local investigation to be requisite or proper". Thus, for exercise of powers/jurisdiction for issuing Commission for the purposes of elucidating any matter in dispute, or for ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the sine qua non is the satisfaction of the Court that it is requisite or proper to issue the Commission for the said purpose.
The provisions of Order 26 Rule 9 of the CPC have been enacted with a purpose and the purpose is to enable the court to get a local investigation conducted by issuing a Commission for elucidating any matter in dispute or determining the market value of property in suit and other related matters, provided the court forms an opinion that it is requisite or proper to do so to achieve the said purpose. The Court can exercise this power even suo motu, however, these provisions cannot be put in service at the instance of a party to fill up any lacune in his evidence, neither the object of Order 26 Rule 9 of the CPC is to facilitate a party to gather evidence in a case where the party itself can get the evidence. These provisions can be invoked at the discretion of the court; of course such discretion is to be exercised judiciously.
Thus, I am of the considered opinion that merely on the asking of a party to the suit or proceedings, the Commission under Order 26 Rule 9 of the CPC cannot be issued. As observed above, for the purposes of issuing the Commission, the facts of the case should be such that the Court should be satisfied first that it is proper and requisite to do so.
Now, coming to the facts of the instant case, what needs to be determined is as to whether the learned trial court while passing the impugned order has given a finding regarding fulfillment of the pre-requisite of issuing the Commission for the purpose of ascertaining the market value or not.
A perusal of the impugned order clearly reveals that the learned trial court has recorded a finding that since report of a valuer is already available on record in respect of which the evidence has also been adduced to the effect that the valuer has filed his affidavit and he has also been examined, as such, there is no justification in summoning any other report by issuing commission under Order 26 Rule 9 of the CPC.
The factum of valuer's report being available on the record of the learned trial court and existence of evidence in the form of affidavit of the valuer and his cross examination, have not been denied by the petitioner-defendant no.2. Thus, there is no doubt that the learned trial court, while rejecting the application and passing the impugned order, has recorded its satisfaction that it would not be proper to issue the Commission for the purposes of ascertaining the market value, at this juncture.
For the discussions made and reasons given above, since sine qua non for issuing a Commission to ascertain the market value in terms of the provisions of Order 26 Rule 9 of the CPC has not been found to be fulfilled by the learned trial court, I do not find any illegality in the impugned order. The writ petition, in the result, is thus hereby dismissed.
However, there will be no order as to costs.
Order Date :- 13.11.2014 akhilesh/-