9911796707
TMI Blog2008 (10) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... osition has not been disputed by Shri Sapkal, learned Advocate for respondent No. 1. 4. The suit was followed by an application Exhibit 5, seeking temporary injunction against defendants. Said application was heard and finally allowed by the trial court on 31.12.2007. Defendants 1 to 3 were temporarily restrained from interfering and obstructing into the peaceful possession of plaintiff over the suit property, i.e. Plot No. 2, situated at Ambika Society, till decision of the suit. 5. Said order was challenged by defendants by filing Misc. Civil Appeal No. 4 of 2008, under Order XLIII of the Code of Civil Procedure ( CPC ). Said appeal is pending in the court of learned Ad-hoc District Judge-I, Ambajogai, District Beed. Said appellate Court initially exercised the powers under Section 151 of CPC and appointed a Court Commissioner. This order was challenged by plaintiff before this Court by filing Writ Petition No. 488 of 2008, which is disposed of by this Court. Copy of the order is annexed at Exhibit C to this petition. The order impugned in the writ petition dated 11.1.2008, was quashed and set aside. The matter was remanded back. It was further observed that the first app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are Appendix A to H also. The sections deal with the provisions of substantive nature, laying down general principles of jurisdiction. First Schedule on the other hand relates to procedure, method, manner and mode in which the jurisdiction may be exercised. The body of the Code of 1908 (Sections) is fundamental and can be amended or modified only by a competent legislation. First Schedule prescribes procedure and can be amended or altered by the High Courts. But once the Rules are amended they become part of the Code for all purposes as if enacted in the Code. The substantive provisions of the Code are fundamental and hence very important but importance of the procedural provisions can not be under estimated. Therefore, both must be read in harmony so as to subserve and advance cause of justice. Part I i.e. Sections 9 to 35B of the Code of 1908 reveal the procedure from the time plaintiff takes a decision to file the suit, select his forum, time, having obtained a decree proceeds to execute it. Most of the important stages of the trial are left to be dealt with by Rules and the Orders contained in the First Schedule. It is well settled principles of interpretation that all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... X Rule 7 provides that the Court may, on the application of any party to the suit and on such terms as it thinks fit, make an order for the detention, preservation or inspection of any property, which is the subject matter of such suit or as to which any question may arise therein. Order XXXIX Rule 7(b) further arms the Court with power for all or any of the purposes aforesaid any person to enter upon or into any land or building in the possession of any other party to such suit. Order XXXIX Rule 7 (C) provides that the Court may, for all or any of the purposes aforesaid authorise any samples to be taken or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence exercise such power. At this stage, provision laid down under Order XXXIX Rule (6) also needs to be considered. In substance power to order interim sale is given to the Court of any movable property, being the subject matter of such suit. Order XXXIX Rule 8 is more important. This Order XXXIX Rule 8 provides that an application by the plaintiff, for an order under Rule 6 (Power to order interim sale) may be made at any time afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to accede to submission of learned Counsel Shri Sapkal. I have carefully considered the facts and provisions under Order XXXIX Rule 7(a) of the CPC. In my view, this provision also does not help the defendants. Looking from any angle to the order impugned, in my view, this order cannot be said to be fit within the parameters of Order XXXIX Rule 7 of CPC. This order needs to be quashed and set aside. 11. Commission may be issued by the Court under Section 75(b) to make a local investigation. The word investigation is not a legal expression. The word investigate means to Examine, inquire into, study carefully; make official inquiry into (The concise Oxford Dictionary - Sixth Edn. 1976). Section 75 has also employed the word Court may , which indicates that it is a discretion vested with the court seized with the matter. The discretion vested with the Court, however, has to be exercised in judicious manner. Section 75(b) empowers the Court to issue a Commission to make a local investigation. Order XXVI Rule 9 provides that if the Court deems a local investigation to be requisite or proper for the purposes of elucidating any matter in dispute or of ascertaining the mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t seized with the matter may consider the substance stated by the party in the application. In the case on hand, application Exhibit 25 in Misc. Civil appeal is annexed with the petition at Exhibit D . Though provision laid down under Order XXVI Rule 9 of CPC is mentioned in this application, I have considered the application from the view point of substance pleaded by the appellants (defendants) in the application. Few lines in the application are important and they reads (verbatim) thus; That, in the above matter, the appellants are claiming that suit house and premises being used by him and his family members as a house and they are residing in the same. On the contrary the respondent No. 1 who is Vice Chairman of Vij Kamagar Sah. Pathsanstha is claiming the suit house being used by the society as office of the Vij Kamgar Society. It is further averred; That, this is issue involved in this matter therefore to elucidate the factual position it is just and necessary to appoint Commissioner in this matter to find out the factual position. It is necessary to direct commissioner to visit the suit house and to give report in what manner the disputed house is being used either of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This order passed by the trial court was set aside by the learned Single Bench. It was Civil Revision Application under Section 115 of CPC. The provisions laid down under Order XXXIX Rule 7 as well as Section 75 of the CPC were not considered by the learned Single Bench of this Court. 15. Shri Sapkal, learned Advocate has also invited my attention to report of the Commissioner, page 68 of the paper book. It appears that after appointment of the Commissioner by the lower Court, commission work has been executed and report is placed on record. 16. I have examined the judgment of the first appellate court. I have also considered judgment of the learned Single Bench of this Court in Writ Petition No. 488 of 2008, dated 22.4.2008. 17. I have considered, the application filed by defendants, from the view point of Order XXVI Rule 9 of CPC. I have also consider the reply filed by petitioner before the lower court i.e. Exhibit 27/D (Page 48 of the paper book). The application for appointment of Commissioner Exhibit 25, filed by defendants, could not have been allowed by the lower court. In my view, issue or the material fact, which has been stated by defendants in application Exhi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
