1977 (12) TMI 150 - HC - Indian Laws

Summary

Issues:
- Ex parte orders under Section 151 and Order 39 Rule 7 of the Civil P. C.
- Validity of appointment of a Pleader Commissioner for counting proxy votes.
- Jurisdiction of the Court to issue an inventory commission.
- Challenge under Section 115 of the C. P. C.
- Discretion of the Court in issuing an inventory commission.

Analysis:

1. Ex parte orders under Section 151 and Order 39 Rule 7 of the Civil P. C.:
The case involved ex parte orders dated 6th, 11th, and 14th Jan. 1977, directing the issuance of a writ of commission for counting proxy votes in a Title Suit. The plaintiff obtained these orders under Section 151 and Order 39 Rule 7 of the Civil P. C. The petitioner challenged the legality of these orders, arguing that they were not permissible for fishing out evidence. The Court emphasized that such commissions should not be issued to collect evidence for a party, citing the Supreme Court's decision in Padam Sen v. State of U. P. The petitioner's contention was supported by legal principles against prolix and unnecessary interrogatories, as well as previous rulings that restricted the Court from seizing documents for use as evidence.

2. Validity of appointment of a Pleader Commissioner for counting proxy votes:
The petitioner objected to the appointment of a Pleader Commissioner to count proxy votes, arguing that the subject matter of the suit did not pertain to proxy forms. The Court agreed, stating that the purpose of the suit was not to resolve issues related to proxy votes. The petitioner contended that the appointment of a Pleader Commissioner for counting votes was improper and not within the Court's jurisdiction, as it was an attempt to fish out evidence rather than address the suit's core issues.

3. Jurisdiction of the Court to issue an inventory commission:
The Court deliberated on whether the Court had the authority to issue an inventory commission for the purpose of collecting evidence in a suit. The plaintiff argued that Order 39 Rule 7 of the C. P. C. allowed for such orders even if they related to matters beyond the suit's subject matter. However, the Court emphasized that an inventory commission should not be used for fishing out evidence, especially through ex parte orders. The Court cited the necessity for extreme caution and strong justification before allowing the inspection of ballot papers, as seen in previous legal precedents.

4. Challenge under Section 115 of the C. P. C.:
The plaintiff contended that the revisional application under Section 115 of the C. P. C. was not maintainable as the case had not been decided. However, the Court clarified that interlocutory orders, including those deciding an issue in the course of a suit, could be challenged under Section 115. The Court referred to legal provisions to support this interpretation, allowing for challenges to orders made during proceedings.

5. Discretion of the Court in issuing an inventory commission:
The Court discussed the discretion of the Court in issuing an inventory commission and whether such discretion was properly exercised in this case. The plaintiff argued that the Court's exercise of discretion should not be interfered with under Section 115 C. P. C. However, the Court concluded that issuing an inventory commission for the purpose of collecting evidence was an improper exercise of jurisdiction, leading to a material failure of justice. The Court held the Rule as absolute, emphasizing that such commissions should not be used to fish out evidence in a suit.