# Khawaja Moinuddin Chisti Language Univ. & Ors. Revisionists v. Dr. Arif Abbas & Ors

- **Citation:** (2023) 2 ILRA 358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-25
- **Case number:** Civil Revision No. 47 of 2022
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khawaja-moinuddin-chisti-language-univ-ors-revisionists-v-dr-arif-abbas-ors-49208
- **Pages:** 7

## Headnote

A. Civil Law -Code of Civil Procedure,
1908-Section 115 - Order XXVI - Rule 9application for Issuance of commission
filed
by
plaintiff
allowed-Evidently,
application for issuance of commission to
conduct an investigation and examination
of documents although not supported by
affidavit
was
even
otherwise
not
maintainable in terms of Order XXVI, Rule
9
CPC-Such
applications
cannot
be
allowed merely for purposes of facilitating
the case of one or the other party and it is
not
the
business
of
the
Courts
to
discharge burden of evidence of either
party-Impugned order set aside .(Para 1
to 22)

The revision is allowed. (E-6)

List of Cases cited:

## Text

358 INDIAN LAW REPORTS ALLAHABAD SERIES
personal bond and two heavy sureties each
in the like amount to the satisfaction of the
court concerned subject to following
conditions.

(i) The applicants will not tamper with
the evidence during the trial.

(ii). The applicants will not pressurize/
intimidate the prosecution witness.

(iii) The applicants will appear before
the trial court on the date fixed, unless
personal presence is exempted.

(iv) The applicants shall not commit
an offence similar to the offence of which
he is accused, or suspected of the
commission of which they are suspected.

(v) The applicants shall not directly or
indirectly make any inducement, threat or
promise to any person acquainted with the
facts of the case so as to dissuade them
from disclosing such facts to the Court or
to any police officer or tamper with the
evidence.

24. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail. Identity, status and
residence proof of the applicants and
sureties be verified by the court concerned
before the bonds are accepted.

25. It is made clear that observations
made in granting bail to the applicants shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.
----------
(2023) 2 ILRA 358
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2022

BEFORE

THE HON'BLE MANISH MATHUR, J.

Civil Revision No. 47 of 2022

Khawaja Moinuddin Chisti Language Univ.
& Ors. ...Revisionists
Versus
Dr. Arif Abbas & Ors. ...Respondents

Counsel for the Petitioner:
Kumar Ayush, Pritish Kumar

Counsel for the Respondents:
Farooqahmad, Syed Azizul Hasan Rizvi

A. Civil Law -Code of Civil Procedure,
1908-Section 115 - Order XXVI - Rule 9application for Issuance of commission
filed
by
plaintiff
allowed-Evidently,
application for issuance of commission to
conduct an investigation and examination
of documents although not supported by
affidavit
was
even
otherwise
not
maintainable in terms of Order XXVI, Rule
9
CPC-Such
applications
cannot
be
allowed merely for purposes of facilitating
the case of one or the other party and it is
not
the
business
of
the
Courts
to
discharge burden of evidence of either
party-Impugned order set aside .(Para 1
to 22)

The revision is allowed. (E-6)

List of Cases cited:

1. Shiv Shakti Co. Housing Scy.,Nagpur Vs M/s
Swaraj Developers & ors. (2003) AIR SCW 2445

2.
Pormusamy
Pandaram
Vs
The
Salem
Vaiyappamalai Jangamar (1986) AIR Madras 33

3. Lalit Devi & anr. Vs Bindu Bihari Verma & ors.,
Writ C No. 41940 of 2013

4. Rama Shanker Tiwari Vs Mahadeo & ors.
(1968) AWR 103

5. Aligarh Muslim Univ. Vs 7th Addl. CJM Aligarh
& anr. (1999) ALR 571

6. Parvej Akhtar & ors. Vs 4th ADJ Agra & anr.
(1993) 2 ARC 304
2 All. Khawaja Moinuddin Chisti Language Univ. & Ors. Vs. Dr. Arib Abbas & Ors.
359
7. H.V. Nagendrappa Vs M.H. Hanumappa & ors.
(2000) SCC Online Kar 164

8. Naseeb Deen & anr. Vs Harnek Singh (2019)
SCC Online HP 1034
(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Pritish Kumar learned
counsel for revisionist and Mr. Viswa Nath
Mishra learned counsel for opposite party
No.1. In view of order being passed,
notices to opposite parties 2,3 and 4 stand
dispensed with.

2. Revision under Section 115 of the
Code of Civil procedure has been filed
against order dated 15th November, 2022
in regular suit No. 2216 of 2022 whereby
application for issuance of commission
under Order XXVI Rule 9 of the Code filed
by the plaintiff-opposite party No.1 has
been allowed.

3. At the very outset learned counsel for
opposite party No.1 has raised preliminary
objection
regarding
maintainability
of
revision under Section 115 of the Code with
the submission that the order impugned is
merely interlocutory in nature and does not
amount in case decided as envisaged under
Section 115 of the Code and therefore
revision would not be maintainable. He has
placed reliance on judgment rendered by
Hon'ble Supreme Court in the case of Shiv
Shakti Cooperative Housing Society, Nagpur
versus M/s. Swaraj Developers and others
reported in 2003 AIR (SCW) 2445 as well as
judgment rendered by High Court of Madras
in the case of Pormusamy Pandaram versus
The Salem Vaiyappamalai Jangamar reported
in A.I.R. 1986 Madras 33.

4. Learned counsel for revisionist in
his rebuttal has submitted that neither of the
aforesaid judgments relied upon by learned
counsel for opposite parties are applicable
in the present case since they do not
consider the U.P. amendment incorporated
in Section 115 of the Code and has in turn
placed reliance on judgment rendered by
co-ordinate Bench of this Court in the case
of Lalti Devi and another versus Bindu
Bihari Verma and others, Writ C No. 41940
of 2013 to submit that revision under
Section 115 against decision on application
under Order XXVI Rule 9 of the Code
would be maintainable in terms of section
115(1) (c) and section 115 (3)(ii) of the
Code
since
a
jurisdiction
has
been
exercised illegally and with material
irregularity ignoring the specific conditions
indicated in Order XXVI Rule 9 of the
Code.

5. So far as maintainability of revision
under Section 115 of the Code from an
order passed in an application for issuance
of commission under Order XXVI Rule 9
of the code is concerned, this court finds
that the judgment rendered by co-ordinate
Bench of this Court in Lalti Devi (supra) is
to the point as considered the judgement
rendered by Full Bench of this Court in the
case of Rama Shanker Tiwari versus
Mahadeo and others reported in 1968 AWR
103 in which the term 'case decided' has
been explained in the following manner:-

"23. I am, therefore, of opinion that
every order granting or dismissing an
application for amendment of pleading will
not give rise to a case decided revisable
u/S. 115 of the Code. An order allowing or
disallowing an application for amendment
of pleading may however, give rise to a
case decided revisable under that Section if
the amendment sought has or is likely to
have a direct bearing on the rights and
obligations of the parties and affects or is
likely to affect the jurisdiction of the Court.
360 INDIAN LAW REPORTS ALLAHABAD SERIES
To this extent the decision in Mst. Suraj
Pali's case can, in may opinion, be said to
be no longer good law.

24. The opinion of the majority of
Judges constituting the Full Bench is that
an order passed u/O. VI R.17 of the CPC,
either allowing an amendment or refusing
to allow an amendment, is a "case decided"
within the meaning of that expression in
S.115, Code of Civil Procedure."

6. The co-ordinate Bench has
thereafter held revision to be maintainable
under amended Section 115 as applicable
in the State of Uttar Pradesh in the
following terms:-

"26. In view of aforesaid discussions,
this Court believes that the trial court in
not deciding the application under Order
26 Rule 9 of C.P.C. on merit and
dismissing the same by taking a pedantic
view has exercised its jurisdiction illegally
and with material irregularity, therefore,
the case being covered under Section 115
(1)(c) and Section 115 (3)(ii) of C.P.C., the
revision would lie. In such view of the fact,
this Court finds that revision in the instant
case is maintainable."

7. So far as judgment cited by learned
counsel for opposite parties concerned, it is
evident that the same do not consider the
U.P. Amendment incorporated in Section
115 of the Code and would therefore be
inapplicable in the present facts and
circumstances of the case.

8. In the present case, although
application under Order XXVI Rule 9 of
the Code has been allowed but the
proposition of law under Section 115 that
even in such a case if jurisdiction has been
exercised illegally and with material
irregularity, revision would be maintainable
finds support from judgment of co-ordinate
Bench rendered in the case of Lalti Devi
(supra) and in the light thereof, the present
revision is held to be maintainable. A
similar view has also been taken in a
Division Bench judgment of this Court in
the case of Aligarh Muslim University
versus 7th Additional C.J.M. Aligarh and
another reported in 1999 A.L.R. 571.

9. Present revision has been filed
against order dated 15th November, 2022
passed by court concerned in regular suit
No.2216 of 2022 whereby application for
issuance of commission under Order XXVI
Rule 9 of the Code has been allowed.
Learned counsel for revisionist submits that
order for issuance of commission was
passed on the very first day of presentation
of plaint without affording any opportunity
of
filing
objections
to
the
revisionist/defendants. It is submitted that
even otherwise no reasoning whatsoever
has been indicated in the impugned order
which has been passed in a cursory manner
without adverting to the fact whether such
application can be allowed within the scope
of Order XXVI Rule 9 of the Code
particularly since the application pertained
to issuance of commission to conduct an
investigation
and
examination
of
documents relating to executive council
meetings and minutes thereof and also
pertaining
to
documents
relating
to
constitution of executive council and
building of the Vice Chancellor residence
and
for
expenses
incurred
and
modifications, alterations etc.

10. Learned counsel has further
submitted that application for issuance of
commission can not be allowed for the
purposes of collection of evidence but may
be issued only for the purposes of
corroboration of evidence led and therefore
2 All. Khawaja Moinuddin Chisti Language Univ. & Ors. Vs. Dr. Arib Abbas & Ors.
361
already on record. It is submitted that in the
application which is not supported by
affidavit, no reasoning whatsoever has been
indicated for issuance of commission. It is
submitted that as such application itself
was not maintainable in terms of conditions
specified under Order XXVI Rule 9 of the
Code. He has placed reliance on the
judgment rendered by Hon'ble Supreme
court in the case of Padam Sen and another
versus State of U.P. reported in A.I.R. 1961
Supreme Court 218 and judgment rendered
by this Court in the case of Parvej Akhtar
and other versus 4th Additional District
Judge Agra and another reported in (1993)
2 ARC 304 as well as H.V. Nagendrappa
versus
M.H.
Hanumappa
and others
reported in 2000 SCCOnLine Kar 164 and
Naseeb Deen and another versus Harnek
Singh reported in 2019 SCCOnLine HP
1034.

11. Learned counsel appearing on
behalf of opposite parties has refuted
submissions advanced by learned counsel
for revisionist with submission that
application was very well within the four
corners of the conditions indicated in
Order XXVI Rule 9 of the Code
particularly
when
the
aforesaid
documents are in possession of the
university authorities who are defendants
themselves and therefore there was no
manner in which the plaintiff-answering
opposite party could have access to those
documents and therefore commission was
required to be issued in order to access
aforesaid
documents.
It
is
further
submitted that in the plaint, specific
assertion has been made with regard to
utilization of funds by Vice Chancellor of
university as well as the fact that the
executive council is not in accordance
with the first statute of university and for
proving
of
which,
the
aforesaid
documents were necessarily required to
be brought on record.

12.

Considering
submissions
advanced by learned counsel for parties
and upon perusal of material on record, it
appears that application under Order
XXVI Rule 9 of the Code dated 15th
November, 2022 was filed for issuance of
commission to conduct an investigation
and examination of documents relating to
executive council meetings and minutes
held on various dates and documents
relating to constitution of executive
council and also relating to expenses
incurred in modifications, alteration,
enhancement made by defendants in the
said
building
amounting
to
certain
amount of money and for building of the
Vice
Chanellor's
residence.
The
application is not supported by any
affidavit and in fact referred to the plaint
which was duly supported by affidavit.
The said application has been allowed on
the same date without inviting any
objections from the defendants.

13. A perusal of impugned order,
dated 15th November, 2022 makes it
evident that no reason whatsoever has been
recorded for allowing application for
issuance of commission. A simple one line
order has been passed 'Heard, application
allowed."

14. For proper appreciation of the
present dispute, it would be necessary to
advert to the provisions of Order XXVI
Rule 9 of the Code pertaining to issuance
of commission which is in the following
terms:-

"
Commission
to
make
local
investigations.- In any suit in which the
Court deems a local investigation to be
362 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. A perusal of the aforesaid
provision makes it evident that commission
to make local investigations can be
permitted by the court where it deems local
investigation to be requisite or proper for
the purpose of elucidating any matter in
dispute or ascertaining market value of any
property, or amount of any mesne profit or
damages or annual net profits. The purpose
of issuance of commission as such is
evident from the conditions indicated
thereunder itself which is only for the
purposes of elucidating primarily any
matter in dispute. The provisions of Order
XXVI Rule 9 of the Code do not make it
applicable for the purposes of collection of
evidence on behalf of the plaintiff.

16. Hon'ble supreme Court in the case
of Remco Industrial Workers House
Building Coop. Society v. Lakshmeesha M.
and others reported in (2003)11 SCC
666;A.I.R. 2003 Supreme Court 3167 has
already held that a plaintiff is liable to
succeed on his own footing and not on the
weakness of the defendant. As such the
pleadings made in the plaint are required to
be
corroborated
or
substantiated
by
evidence which is also required to be
placed on record by the plaintiff himself.
The only exception in such a case could be
where such evidence is beyond reach of the
plaintiff or is in such a secured place that
he would normally not have access thereto
but for the issuance of commission for
nature indicated in such a case, it would be
necessary and incumbent upon the plaintiff
to plead particularly as to why the plaintiff
could not have access to such evidence
which would therefore require issuance of
commission for the purposes of collection
of such evidence. Hon'ble Supreme Court
in the case of Padam Sen (supra) has
clearly held that it is not the business of
court to collect evidence for party or even
to protect the rival party from evil
consequences of making forged entry in the
books of accounts. It was held that
defendants request which amounted to
courts collecting documentary evidence
which the defendants considered to be in
their favour at that point of time could not
be permitted. Relevant paragraph 15 of the
judgment are as follows:-

"15. It cannot, however, be lost sight
of that the burden to prove title and claim
for possession of specific land in Survey
No. 132/2 was initially on the plaintiff.
Defendant 1 in the written statement
contested the claim of the plaintiff and
claimed title in itself. The grant of
occupancy rights in favour of tenant
Muniyappa contained in the order dated
28-5-1965 (Ext. D-3) was produced in the
trial court without objection from the
plaintiff and allowed to be exhibited and
marked as Ext. D-3. When such a document
of grant of suit land to the extent of 1 acre
3 guntas in favour of Defendant 1 was
before the trial court, it was necessary for
it to consider its effect on the subsequent
grant dated 9-12-1969 (Ext. P-1) in favour
of the erstwhile inamdar. The legal position
not in dispute is that if the suit land in
2 All. Khawaja Moinuddin Chisti Language Univ. & Ors. Vs. Dr. Arib Abbas & Ors.
363
Survey No. 132/2 ? area 1 acre 3 guntas
had already been granted by the order
dated 28-5-1965 (Ext. D-3) to the tenant
Muniyappa, the same land could not have
formed part of the grant to the extent of
1/7th share to the erstwhile inamdar in the
order dated 9-12-1969 (Ext. P-1). A clear
legal issue, based on an earlier grant dated
28-5-1965 (Ext. D-3) and the subsequent
grant dated 9-12-1969 (Ext. P-1) with the
identity of the land under the two grants
did arise before the trial court as well as
the appellate court. The said issue has not
been answered by any of the two courts
below. The plaintiff has to succeed on the
strength of its own case and not on the
weakness of the case of the defendant. In
opposing the prayer for remand, the
learned counsel appearing for the plaintiffrespondent has placed strong reliance on
the decision of the Privy Council in Kanda
v. Waghu [AIR 1950 PC 68 : 77 IA 15] .
The contention advanced is that since
pleadings based on Ext. D-3 were not
raised
in
the
written
statement
of
Defendant 1 and no issue on the basis of
Ext. D-3 having been raised in the trial
court, this Court should not remit the
matter for retrial on the said issue."

17. The same analogy has also been
drawn by co-ordinate Bench of this Court
in the case of Parvez Akhtar (supra) in the
following manner:-

"11. In other words, the object of local
investigation is not so much to collect
evidence, which maybe taken in the court,
but just to facilitate the appreciation of the
evidence led or nature of the controversy
between
the
parties
or
to
facilitate
appreciation of any point, which is left
doubtful in the evidence of the parties
before the court. The object of issuance of
commission is that some assistance may be
derived from those facts found actually
after the investigation by the Commissioner
on the spot, but that investigation must be
in respect of the matter in dispute and not
otherwise. The legislature required that the
discretion of the court can be exercised
following all conditions with a view to
obtain certain facts investigated by the
Commissioner which promises peculiar
facts and which can be had from the spot
inspection itself, but that must be directly
in respect of any matter in dispute. This is
with a view to enable the court to properly
and correctly appreciate evidence on
record. The report of the Commissioner
clarifies and explains any point which
might appear to be doubtful after the
evidence has been led by the parties. The
provision
of
Order
XXVI
Rule
9,
presuppose evidence on the record and
independent evidence, led by the parties,
which requires elucidation."

18. Various high courts in the country
have also elucidated the provisions of
Order XXVI Rule 9 in the same manner as
indicated in the judgments rendered by
High Court of Himanchal Pradesh in the
case of Naseeb Deen (Supra) and H.V.
Nangendrappa (supra) by the High Court of
Karnataka.

19. Upon applicability of aforesaid
judgments
in
the
present
facts
and
circumstances of the case, it is evident that
application for issuance of commission to
conduct an investigation and examination of
documents although not supported by
affidavit was even otherwise not maintainable
in terms of Order XXVI Rule 9 of the Code
as observed herein above particularly when
there is no explanation furnished by the
plaintiff as to why and how he could not have
access the documents required or even
importance and relevance of the aforesaid
364 INDIAN LAW REPORTS ALLAHABAD SERIES
documents for purposes of elucidating a
dispute particularly when even issues have
not been framed and even objections were
not called for from the defendants.

20. It has already been observed herein
above that applications under Order XXVI
Rule 9 can not be allowed merely for
purposes of facilitating the case of one or the
other party and it is not the business of the
courts to discharge burden of evidence of
either party.

21. In view of aforesaid, the order
impugned dated 15th November, 2022 passed
by the Court of Civil Judge, Senior Division,
Malihabad, Lucknow in regular suit No. 2216
of 2022 being against law is set aside.

22. The revision consequently stands
allowed. Parties to bear their own costs.
----------
(2023) 2 ILRA 364
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 1240 of 2021

Rajendra Yadav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Kailash Pati Singh Yadav, Sri Rajiv Lochan
Shukla, Ms. Suman Bharti

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860
- Section 302 - Murder - benefit of
doubt - In written report, P.W.-1/first
informant, stated that in the evening,
when his father was returning, the
accused, ambushed him at around 7:45
P.M., and repeatedly assaulted him with
a brick until he died - Held - court found
it implausible that P.W.-4 and P.W.-3,
aged 66 and 60 respectively, could
correctly
see
the
incident
from
a
distance of 15 to 20 paces in the dark
and identify the accused, especially with
the brief illumination from a passing
jeep - weapon of assault i.e. the brick
was not sent for forensic examination,
which casts a doubt in the prosecution
case - there was discrepancy in the site's
location - As per the site plan prepared
by P.W.-8 (Investigating Officer), the
place of occurrence was 700 to 800
meters away from G.T. Road, whereas as
per
the
statement
of
prosecution
witnesses of fact i.e. P.W.-3 and P.W.-4
the place of occurrence was near the
village Kateshar Bhusha Mandi Bawan
Bigha field (Maidan) - Both the places
are far away from each other - From the
statements of the P.W.-3 it was clear
that the deceased had already died by
the time when P.W.-3 reached the place
of occurrence and he has not seen the
incident
when it
occurred
-
These
inconsistencies led the court to conclude
that the prosecution had not established
the
guilt
of
the
accused
beyond
reasonable doubt, entitling the accusedappellant to the benefit of doubt -
possibility of the death of the deceased
occurring in a road accident also cannot
be ruled out (Para 35, 36, 38, 40)

Allowed. (E-5)

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This criminal appeal is directed
against the impugned judgment and order
dated 10.02.2021, passed by Additional
Sessions Judge/ Fast Track Court-II,
Chandauli in Session Trial No. 04 of 2013
(State of U.P. Vs. Rajender Yadav), arising
out of Case Crime No. 232 of 2012,
whereby
accused-appellant-
Rajendra