Steps were taken to serve the contesting respondents but they did not appear. Heard learned counsel for the petitioner.
Respondents instituted Original Suit No.367 of 2002 against the petitioner for permanent prohibitory injunction in respect of part of Plot No.167 ad-measuring 3.445 hectares. Area of disputed portion is 580 square yard. Petitioner pleaded that property in dispute was residential sub-plot of 335 square meters (400 square yards) which had been sold by the plaintiffs to him through registered sale deed dated 14.04.2000 and plaintiffs had also sold other small parts of the plot in question to other persons. In the suit plaintiffs filed an application for appointment of Commissioner to inspect the spot and give report. The trial court through order dated 20.07.2004 rejected the application for appointment of Commissioner. Against the said order plaintiffs respondents filed Civil Revision No.56 of 2004, which was dismissed on 10.02.2005 by A.D.J./ Special Judge, D.A.A., Kanpur Dehat. Ultimately, the suit was dismissed on 08.04.2008 by Civil Judge, Senior Division, Kanpur Dehat. Against the said decree plaintiffs respondents filed Civil Appeal No.100 of 2008.
In the appeal plaintiffs appellants filed application for inspection under Order XXVI Rule 10-A and Section 151, C.P.C. The application for commission filed on 18.08.2008 was allowed by A.D.J. Court No.3 Kanpur Dehat on 17.11.2008. The said order has been challenged through this writ petition.
Petitioner had filed objections to the commission application before the appellate court. The main objection was that similar application had been rejected by the trial court. The appellate court held that there was some confusion in the evidence in respect of the boundaries mentioned in the sale deed and in the plaint and that if spot position was brought on record through commission no party would suffer any loss and court will be in a better position to decide the controversy.
The main argument of learned counsel for the petitioner is that similar application had been rejected by the trial court hence impugned order is barred by principles of res judicata. In this regard reference has been made to U.P.S.R.T.C. Vs. State of U.P. and another AIR 2005 SC 446, D.P. Devi Vs. Indrajeet Tiwary, 2008 All. C.J. 1249 (SC) and a division bench authority of this court reported in Rakesh Balaaneja (Smt.) Vs. Smt. Shushila Bajaj and others, 2012 (1) ARC 478 placing reliance upon Y. B. Patil v. Y. L. Patil, AIR 1977 SC 392.
It is correct that interim order passed in a proceeding operates as res judicata in certain circumstances and at a later stage of the same proceedings different order cannot be passed, however this principle applies only to same type of proceedings i.e. either suit or appeal or revision. It can never mean that if an order is passed by the trial court, then in appeal contrary order cannot be passed. To hold otherwise will be disastrous. It would mean that appellate court can never reverse the decree passed by the trial court. If an application for issuance of commission has wrongly been rejected by the trial court, appellate court can very well get the inspection done. Under Section 107(2), C.P.C. it is provided as under:
"Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted thereto."
In Gajraj and others Vs. Ramadhar and others, AIR 1975 Allahabad 406 and Munshi Lal Agarwal and others Vs. IX A.D.J. Lucknow and others, 1994 (2) ARC 204, it has been held that appellate court can very well issue commission for local investigation under Order XXVI Rule 9 read with Section 107 C.P.C. Filing of a similar application before the trial court instead of jeopardising the case of the appellants, rather strengthened their case. In Prayag Ice and Oil Mills, Aligarh Vs. State of U.P. 1971 ALJ 244 it has been held that if appellant refused to avail the opportunity for survey granted by the trial court filing of such application before the appellate court was not maintainable.
In Bali Ram Vs. Mela Ram, AIR 2003 HP 87 it has been held that appointment of commissioner for making local investigation can be done even suo motu. In the impugned order it is mentioned that in the opinion of the appellate court it was essential to get the property inspected through commission in order to arrive at correct judgment. Accordingly, the order is justified under suo motu power also.
I do not therefore find least error in the impugned order. Writ Petition is dismissed.
Order Date :- 01.11.2012 NLY