JUDGMENT S.N. Srivastava, J.
1. These two petitions bear close resemblance to each other by reason of similar nature of controversy and also by reason of the fact that plaintiff in both the suits is one and the same and plaintiff brought action in both the suits on the ground that goods supplied by the defendant were sub-standard. It would therefore be appropriate that both the petitions should be disposed of by one composite order.
2. To avoid adding bulk to the composite order which this Court proposes to pass on the points involving merit, it would suffice to recapitulate facts as embodied in Writ Petition No. 3883 of 2004 filed by M/s. Harihar Sughand (P.) Ltd. for clinching the issue. It would appear that the petitioner has rushed to this Court assailing the order dated 5.1.2004 passed by Addl. Civil Judge (Senior Division). Kanpur Nagar by which the court below allowed Application No. 39/C2 and appointed Advocate Commissioner.
3. Plaintiff who is arrayed as respondent No. 2 in the instant petition, a company engaged in manufacturing 'Pan Masala' instituted Suit No. 1082 of 2000. It would appear from the record that in processing its product, i.e., Pan Masala the respondent No. 2 had purchased 10 kg. of Atar Motia-50 from the petitioner defendant which was found to be sub-standard, i.e., detracting from standard and it was set apart as unfit for being used in processing goods which is meant for human consumption. Thereafter, dispute erupted leading to the institution of the suit. It would appear from the record that initially, plaintiff made an application to the court below for appointment of an Advocate Commissioner with the direction "to go at plaintiff's factory premises and to prepare the inventory of goods as specified by the plaintiff in the referred and relevant paragraphs of the plaint with requisite details and to get them packed and sealed adequately and properly so that they may be fully and properly secured. The learned Commissioner be also directed to affix seal and signature after securing them properly in the container." The aforesaid application came to be rejected by means of order of the court below dated 3.2.2003 and it was reasoned by the court below that "whether plaintiff had consumed the goods supplied by defendant is a matter of evidence and in case, subsequently, it is found necessary to collect evidence by commission, it may be issued. Subsequently, an application was made for framing of an issue on the question pursuant to which the court below framed an issue on the aspect whether the materials supplied by the defendant had been consumed by the plaintiff and if yes its effect ? Thereafter, followed another application by which the plaintiff respondent No. 2 sought issue of commission in relation to the goods which were stored and lying unused at the factory of the plaintiff. It would appear that the court below framed the issue and while dwelling upon the issue on the aspect framed by it, it converged to the conclusion that it would be proper to issue commission for collecting evidence and for effective adjudication of the issue framed and consequently, it appointed Advocate Commissioner with the direction to submit its report by 9.2.2004. It would appear that in the meantime, the petition was preferred in this Court and the Court was pleased to pass interim order dated 3.2.2004 thereby staying operation of the impugned order passed by the court below.
4. The learned counsel for the petitioner began his submission initially giving general view of the controversy involved and thereafter canvassed that since initial application for appointment of Commissioner had come to be rejected, the second application for the self-same prayer was not maintainable and suffered from the principles of res judicata. It was further canvassed that the Court below erred in law in entertaining the second application made with the selfsame prayer and in allowing the same. Per contra, the learned counsel appearing for the respondents refuted the submission and urged that the impugned order was rightly passed inasmuch as the court below had framed specific issue and thereafter, on the application of the plaintiff, it passed orders for appointment and for issuance of commission.
5. Section 75 of the C.P.C. deals with the power to issue a commission subject to such conditions and limitations as may be prescribed. It further envisages that the Court may issue a commission (a) to examine any person ; (b) to make a local investigation ; (c) to examine or adjust accounts ; or (d) to make a partition ; (e) to hold a scientific, technical or expert investigation ; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit ; and (g) to perform any ministerial act. Order XXVI, Rule 9 being also germane to the controversy involved in this petition may be excerpted below.
"Order XXVI, Rule 9
9. Commission 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.
10. Procedure of Commissioner. - (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence,' together with his report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit-Commissioner may be examined in person.-The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record ; but the Court or, with the permission of the Court, any of the parties to the suit examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned In his report, or as to his report, or as to the manner in which he has made the investigation.
(3) Commissioner may be examined in person.-Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit."
6. It would thus crystallise from a perusal of the above quoted provisions that Commission can be issued for local investigations if it is found requisite or proper for the purpose warranting elucidation on 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.
7. From a perusal of the materials on record, it transpires that the plaintiff sought issuance of commission for ascertaining whether the goods supplied has been consumed or the same was still lying unused and what was the condition of the goods and further whether the goods were according to standard or were sub-standard. It would appear that the first application was made for issue of commission and at that time, it was rejected on the ground that whether plaintiff had consumed the goods supplied by defendant is a matter of evidence and in case it is found necessary to collect evidence by commission it may be issued. In substance, the propriety of issue of commission was relegated to subsequent stage whether it is at all required to collect evidence on the aspect. Subsequently, on an application of the plaintiff, a specific issue was framed whether the plaintiff had consumed the goods or not and while being seized of the issue, imperativeness of issuing commission was felt ostensibly for effective adjudication of the controversy. In this perspective, the contention of the learned counsel for the petitioner that the subsequent order was impaired as the subsequent application was barred by principles of res judicata, does not commend to me for acceptance. In this connection, an earlier order of the court below may be referred to in which the court below clearly ventured a view that it was not the stage of issue of commission and that whether plaintiff had consumed the goods supplied by defendant is a matter of evidence and in case it was found necessary to collect evidence by Commissioner it may be issued. In the circumstances, it cannot be said that it was barred by res judicata or that the Advocate Commissioner could have been appointed for collection of evidence, which may be utilized the parties in the suit.
8. The learned counsel posed a specific question by as to how issuance of commission for the purpose would adversely prejudice the interest of the defendants. This elicited no response from the learned counsel save saying that it was barred by the principles of res judicata. There appears to be no plausible reason for being prejudiced by the impugned order nor does it appear that the impugned order has impinged upon the case and interest of the defendant in any manner. Litigation for rightful cause is a welcome step but the Court does not view -with approval that the parties should rush to the Court at the very drop of a hat inasmuch as decision of case consumes precious public time and a frivolous petition not only consumes precious court time but it impinges upon the public time which could otherwise be devoted to decide a valid and justiciable action. I do not see any ostensible reason except that it was a device to protract the disposal of the suit, which should not be encouraged.
9. Likewise, in Writ Petition No. 3951 of 2004, the goods supplied by M/s. Debi Prasad Sunder Lal Khattri were found sub-standard and consequently, a suit was instituted. In the said suit as well, a similar issue was framed to the effect whether the goods supplied by the defendant had been consumed by the plaintiff or not and if so its effect? In the light of the elaborate discussions on the point {supra), I also veer round to the view that the court below rightly issued commission and the order does not suffer from any illegality or infirmity, which could warrant interference by this Court under Article 226/227 of the Constitution.
10. In the facts and circumstances, as discussed above, I am of the view that both the writ petitions fail and are liable to be dismissed.
11. It is ordered accordingly. Interim order shall stand discharged.