This writ petition has been filed by the petitioners challenging the order dated 20.4.1996, passed by the 11th, Additional District Judge, Varanasi (annexure 9 to this writ petition) in civil revision no. 455 of 1995.
The facts of the case, in brief, are that a civil suit no. 1221 of 1989 was filed by the plaintiffs-petitioners seeking a relief of permanent injunction restraining the respondents 2 to 6, from interfering with the possession of the plaintiffs over the plot no. 828 marked as letters Aa, Pa, Sa, Bha marked with red lines. There was also a dispute with regard to 6 feet wide pathway which also was a part of the plot no. 828, parts of which plot had been purchased by the plaintiffs-petitioners.
The contention of the plaintiffs-petitioners was that he was in service and during his absence the defendants had occupied six feet wide road on plot no. 828 which thus prevented the plaintiffs-petitioners from opening window or door on that side of his plot.
An application 76 (Ga) was filed by the plaintiff for appointment of Advocate Commissioner. By the order dated 20.10.1995, the trial court appointed an Advocate Commissioner. Being aggrieved by the said order, the defendants respondents 2 to 6 herein, filed revision no. 455 of 1995. The revisional court by the impugned order dated 20.4.1996 set aside the order dated 20.10.1995 aggrieved by which this petition has been filed.
I have heard Sri C.K. Parekh, learned counsel appearing for the petitioners as well as Sri B.N. Upadhyay and Sri K.B. Srivastava for the respondents 2 to 6 and learned standing counsel for the State.
It is pointed out by the learned counsel for the petitioners that earlier an application 52 (Ga), under order XXVI, Rule 9 C.P.C. had been filed by the respondents on 16.3.1990, for appointment of Advocate Commissioner and the said application was allowed and Advocate Commissioner was appointed. The plaintiffs-petitioners, however, filed a recall application and detailed objections on 10.4.1990, further requesting that some senior counsel may be appointed to measure the entire plot no. 828 and the land of the plaintiffs-petitioners be separated and a report be called for in respect of the six feet wide pathway. The trial court modified its earlier order and ordered accordingly. On 10.7.1990, the commissioner's report was filed against which objections were filed and thereafter issues were framed. Ultimately on 27.5.1993, the Commissioner's report was rejected. On 13.7.1994, the plaintiff-petitioners filed a fresh application for appointment of a second Advocate Commissioner for inspection of the entire area of plot no. 828 and to prepare a survey map. In civil revision no. 455 of 1995, the revisional court by the impugned order dated 20.4.1996 has set aside the order dated 20.10.1995 and has held that since in the plaint, there were no averments relating to the disputed six feet wide passage and no relief was also sought in respect of this plot, therefore, there was no good ground for appointment of Advocate Commissioner.
However, from a perusal of the documents on record including the plaint as well as the earlier order dated 20.10.1995 and the impugned order dated 20.4.1996, it will be seen that in para (5) of the plaint there is a clear averment that the six feet wide passage was a part of the plot no. 828. In para 8 of the plaint, the plaintiffs-petitioners although have admitted that they have no concern with the six feet wide passage but in the plaint it has been specifically averred that some illegal constructions in the nature of a wall is being made by the defendants-respondents over the six feet wide passage as a result of which the petitioners are not able to open a window on that side of the disputed plot.
Sri Upadhyay, on the other hand submitted that the revisional court has rightly held that no relief was sought by the plaintiffs in respect of the six feet wide passage and, therefore, no Advocate Commissioner could have been appointed to prepare a survey map of the plot no.828. However, from a reading of the relief sought in the plaint, it is seen that the plaintiffs-petitioners have specifically sought a relief that in respect of the portion of the map marked as Aa, Pa, Sa, Bha which is marked in red lines, the plaintiff-petitioners may be permitted to open a window and projection and the defendants may be restrained from using the road on the plot in dispute. In view of the specific averments as well as relief sought in the plaint, it cannot be said that there is no dispute or relief sought with regard to the opening of the window and projection by the plaintiffs over the passage over which the defendants have sought to constructive a wall.
The question whether the defendants-respondents have a right over a six feet wide passage or whether the wall constructed by them thereon is valid and whether the plaintiffs' ingress to the said disputed passage or right to open a window or projection is affected by the construction of the said wall by the defendants-respondents is a matter yet to be decided by the civil court. In the opinion of the Court, it was not appropriate for the revisional court to interfere with the order dated 20.10.1995 appointing Advocate Commissioner to submit a second Commission report as the order to appoint Advocate Commissioner did not in any manner determine the rights of the parties, which was a question yet to be decided by the trial court and, therefore, the revisional court has clearly exceeded its jurisdiction in interfering with the order of the trial court dated 20.10.1995 and further proceeded to record findings that there were no averments or relief claimed in respect of the six feet wide passage in the plaint. Such a finding virtually amounted to the revisional court sitting in appeal over the order of the trial court.
The Supreme Court in the Case reported in AIR 2003 Sc 2434 (Shiv Shakti Co-op. Housing Society, Nagpur v. M/s. Swaraj Developers and others) in para 32 has held as follows.
"32. A plain reading of S.115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under S.115. There is marked distinction in language of S.97 (3) of the Old Amendment Act and S.32(2) (i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such as intent is significantly absent in S. 32(2) (i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.
The Supreme Court reported in (2000) 6 SCC 506 (Rajinder & Co. v. Union of India and others) in para 2 has held as follows.
"2. We cannot appreciate why the High Court had interfered with that part of the order passed by the trial court appointing a Commission for inspecting the side and to file a report and to measure the work done by the respondent. The learned counsel for the appellants submits that the respondent will not be made responsible for the cost or expenses which may be involved in the Commission to file the report. The question whether the Commissioner's report is finally acceptable or not would be decided by the Court dehors the order passed by the authority concerned. In the light of the said innocuous position it was not necessary for the High Court to alter the trial Court's order. We, therefore, set aside the impugned order of the High Court and restore the order of the trail court in full measure, with the rider that this action will be without prejudice to the right of the parties to substantiate the respective contentions regarding the tenability or untenability of the Commissioner's report and its conclusions."
This Court reported in Allahabad Rent Cases 1993 (2) 274 in para 14 has held as follows.
"14. In the present case, the trial Court after considering the circumstances was of the opinion that Amin may again be directed to submit a report after surveying the land in dispute on the basis of settlement maps and other maps. The main dispute in the suit was regarding the location of plots on which the constructions were made. It was for the trial court to exercise the jurisdiction in the matter. The District Judge illegally set aside the order of the trial Court in revisional jurisdiction and interfered with the exercise of discretion of the trial Court in directing the Amin to submit another report."
This Court further in the case reported in 2000 (40) Allahabad Law Reports 534 (SC) Shreepat Vs. Rajendra Prasad, in para 2 and 3 has held as follows.
"2. On a consideration of the evidence on record, the trial court decreed the suit. the decree was affirmed by the lower appellate court and upheld by the High Court in Second Appeal.
The principal contention raised by learned counsel for the appellant is that though there was a serious dispute with regard to the identity of the land in dispute, whether the land in dispute formed part of Khasra No.257/3 or Khasra No. 257/1, the courts below did not get the identity established and decreed the suit of the Respondent only on the basis of oral evidence which was not sufficient for the purpose of establishing the identity of the land in dispute at the spot.
3. In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No.257/3 or Khasra No.257/1. This having not been done has resulted in serious miscarriage of justice. We consequently allow the appeal, set aside the order passed by the courts below as affirmed by the High Court and remand the case to the trial court to dispose of the suit afresh in the light of the observations made above and in accordance with law."
In view of the above proposition of law laid down by the Supreme Court and the peculiar facts and circumstances of this case noted above, the impugned order dated 20.4.1996 was clearly illegal and beyond jurisdiction.
Accordingly, the writ petition is allowed and the impugned order dated 20.4.1996 is quashed.
The interim order dated 16.5.1996 staying further proceedings in suit no.23 of 1989 is hereby vacated and a direction is issued to the trial court to proceed with the suit and take it to its its logical conclusion expeditiously preferably within a period of six months from the date a certified copy of this order is placed before it.
Order Date :- 5.11.2012 N Tiwari