JUDGMENT Vineet Saran, J.
1. Heard Sri S. N. Singh, learned counsel for the petitioner as well as Shri Sankatha Rai, learned counsel appearing for the contesting respondent and perused the record.
2. An Original Suit No. 122 of 1988 was filed by plaintiff-respondent No. 3 Bechai for injunction against the respondent No. 4 Bechan, who was initially arrayed as the sole defendant. The petitioner Ghurhu was subsequently impleaded and arrayed as defendant No. 2. It is not disputed that Bechan, defendant No. 1 was owner of half of the portion of the land on the basis of the sale deed executed by one Hukku, who was the brother of the father of defendant No. 2 -petitioner. The petitioner-defendant No. 2 claims to be the owner of the other half portion of the property. Allegedly the plaintiff claimed possession on the basis of oral permission having been granted to him by the father of the petitioner. During the pendency of the suit, an Amin-commissioner was appointed for on the spot inspection of the property in dispute, who submitted his report. The petitioner-defendant No. 2 filed an application for appointment of a fresh commission on the ground that neither he nor his counsel were ever informed of the visit of the Amin-commissioner on the spot and as such his report was prepared behind the back of the petitioner. It was also stated in the application, which was supported by an affidavit, that the plaintiff had filed the suit in collusion with defendant No. 1 and it has been submitted that the same would be clear from the fact that although the plaintiff was claiming possession over the property on the basis of oral permission granted by the father of the petitioner, the petitioner was not initially even impleaded as a defendant. The said application of the petitioner was rejected by the trial court vide its order dated 31.10.1991, primarily on the ground that as the earlier report of the Amin-commissioner had already been accepted, hence there was no justification for issuing a fresh commission. A revision was filed challenging the aforesaid order of the trial court which was dismissed by the Xth Additional District Judge, Varanasi vide order dated 6.1.1993, on the ground that the order impugned was an interlocutory order against which revision was not maintainable. Aggrieved by the said orders, this writ petition has been filed.
3. Having heard learned counsel for the parties and on perusal of record, in my opinion, the view of the revisional court that the order passed by the trial court was an interlocutory order and thus no revision was maintainable, is not correct in the facts of the present case. Reliance has been placed on a decision of the Apex Court in Swetambar Sthanakwasi Jain Samiti and Anr. v. Alleged Committee of Management Sri R. J. I. College, Agra and Ors., JT 1996 (3) SC 21, wherein it has been held that when a suit is pending between the two parties, the interim and miscellaneous order passed by the trial court--against which the remedy of appeal or revision is available--cannot be challenged by way of a writ petition under Article 226 of the Constitution of India and that the High Court should not permit its extraordinary jurisdiction to be converted into a civil court under the ordinary law. The said proposition of law is well-settled.
4. However, in the case of Rama Shanker Tiwari v. Mahadeo and Ors., 1968 AWR 103, a Full Bench of this Court has held that the jurisdiction of the High Court under Section 115, C.P.C., is analogous to its jurisdiction of issuing writs. "Case" is a word of comprehensive import. It cannot be equated with a suit alone but includes part of a suit also. An interlocutory order, which has a direct bearing on the rights of the parties, is a "case decided" within the meaning of Section 115, C.P.C., even though it does not finally dispose of the suit.
5. In the present case, merely because the first report was confirmed, subject to the evidence by the parties, the issuance of the second commission could not be denied. The primary issue before the Court was with regard to the possession over the property in question and even though an ex parte report had been submitted, for proper decision of the case, a second commission could be issued for submitting its report after information to parties. The second proviso to the amended Section 115 of the Code of Civil Procedure as applicable in the State of Uttar Pradesh reads as under :
"Provided further that the High Court or the District Court shall not under this section, vary or reverse any order including an order deciding an issue, made in the course of a suit or other proceeding, except where,
(i) the order, if so varied or reversed, would finally dispose of the suit or other proceedings ; or
(ii) the order, if allowed to stand, would occasion a failure of Justice or cause irreparable injury to the party against whom it was made."
6. In my view, the present case would be covered under Clause (ii) of the second proviso, as in case if a proper commissioner's report was not obtained, it would cause irreparable injury to the petitioner amounting to failure of justice. I am thus of the opinion that in the facts of this case, the dismissal of the revision on the ground that the same was not maintainable, was not justified.
7. As regards the merits of the case, it is true that normally a second commission should not be issued unless the report of the first Commissioner is set aside and this Court in the case of Mangal Misir and Anr. v. Ramlagan Misir and Ors., AIR 1933 All 65, has held that unless the Court comes to the conclusion that the report is wrong and worthless as a piece of evidence in the case, it is not permissible to appoint another Commissioner and condemned the appointment of successive commissioners. In another decision of this Court rendered in the case of Dr. K.C. Tandon v. IXth Additional District Judge, Kanpur Nagar and Ors., 1988 (33) ALR 267, it has been held that no party to the suit can claim as of right to get a commission issued for the purposes of local inspection. But in my view, the same cannot be said to be a universal rule, as each case has to be considered in the light of its own facts. In the present case, it is true that a commissioner had been appointed who had already submitted his report, but the facts reveal that the petitioner-defendant No. 2 was not informed of the visit of the Amin-
commissioner for inspection regarding which neither the trial court nor the revisional court has given its finding, although such objection had been categorically taken by the petitioner. In the case of Ram Lakhan v. District Judge, Basti, 1993 AWC (Suppl) 214 : 1993 All CJ 252, this Court was of the view that in a case where local investigation is necessary to ascertain certain facts, the Court has power to appoint another Commissioner to get additional information so as to determine the controversy involved in the suit more effectively. As regards the power of the Court to issue a second commission even when the report of the first commissioner had been confirmed by the Court, it was held that such power can be traced to the well known principle that power to issue a commission is not exhausted with first exercise thereof and setting aside the first report cannot be a condition precedent. The second commission can be issued when it is found necessary in the facts of the case, and thereafter, the Court can, after the evidence is recorded, at the time of delivering the judgment, place reliance on either of the two reports, as the facts and circumstances of the case may require. The endeavour of the Court should be to get to know the correct facts involved in the case so that it could arrive at a correct decision and not to shut the doors, merely on technicalities. The trial court or the revisional court have not given any finding of fact as to whether the petitioner or his counsel were ever informed about the visit of the Amin-commissioner on the spot nor has any finding been recorded with regard to the alleged fraud being committed by the plaintiff and the defendant No. 1 in collusion with each other. The Apex Court in the case of United India Insurance Co. Ltd. v. Rajendra Singh and Ors., 2000 (2) AWC 1349 (SC) : 2001 (42) ALR 451 has, while dealing with a case where fraud had been committed, held that if the Court fails to afford an opportunity to substantiate its contention, it might certainly lead to serious miscarriage of Justice.
8. In the present case, admittedly the petitioner had not been impleaded as a defendant at the initial stage, although he had a right over the property on which the plaintiff was claiming possession, and further the specific case of the petitioner that he was not informed of the visit of the Amin-commissioner and that there was collusion between the plaintiff and defendant No. 1, regarding which no finding has come form the courts below. By not issuing the second commission to inspect the property after information to the parties, the cause of the petitioner would certainly suffer. As such, in my view, the courts below have erred in not permitting the second commission to be issued, which could inspect the property after information to the parties and submit its report.
9. For the foregoing reasons, the impugned orders dated 6.1.1993 and 31.10.1991 passed by the revisional court and the trial court are quashed. It is directed that a fresh commissioner's report may be called for in accordance with law as expeditiously as possible. Since the suit was filed in the year 1988 and more than 15 years have passed, it is desirable that the trial court hears and decides the suit after giving opportunity to the parties, expeditiously, preferably within a period of one year from the date of filing of a certified copy of this order, without being influenced by any observation made in this Judgment.
10. In the result, this writ petition stands allowed. No order as to costs.