# Km. Chandana Mukherji v. A.D.J., Spl. Judge P.C. Act, Lko. & Anr

- **Citation:** (2023) 3 ILRA 1256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-03
- **Case number:** Matter Under Article 227 No. 6654 of 2020
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-chandana-mukherji-v-a-d-j-spl-judge-p-c-act-lko-anr-49924
- **Pages:** 6

## Headnote

Civil Law -Code of Civil Procedure, 1908 -
Order XXVI Rule 9 - Application for
issuance
of
commission-
suit
of
cancellation of sale deed and permanent
injunction dismissed by trial court- order
under challenge- purpose of issuance of
commission- ascertain alleged possession
of the plaintiff- Plaintiff liable to succeed
on his own footing- Order XXVI Rule 9 not
applicable for purpose of collection of
evidence for plaintiff- order of trial court
upheld- Petition dismissed.

HELD: 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.
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 regarding possession of parties to a
dispute would not be 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 that he
could not have access to any documents
required for proving his possession over suit
property. Even otherwise, it is impossible for a
commission to decide possession of a particular
party to dispute over the suit property only on
the basis of a cursory examination

It has already been observed herein above that
applications under Order XXVI Rule 9 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

Petition dismissed. (E-14)

List of Cases cited:

## Text

1256 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 3 ILRA 1256
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.03.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Matter Under Article 227 No. 6654 of 2020

Km. Chandana Mukherji ...Petitioner
Versus
A.D.J., Spl. Judge P.C. Act, Lko. & Anr.
 ...Respondents

Counsel for the Petitioner:
Arun Kumar Srivastava

Counsel for the Respondents:
Ghanshyam Yadav

Civil Law -Code of Civil Procedure, 1908 -
Order XXVI Rule 9 - Application for
issuance
of
commission-
suit
of
cancellation of sale deed and permanent
injunction dismissed by trial court- order
under challenge- purpose of issuance of
commission- ascertain alleged possession
of the plaintiff- Plaintiff liable to succeed
on his own footing- Order XXVI Rule 9 not
applicable for purpose of collection of
evidence for plaintiff- order of trial court
upheld- Petition dismissed.

HELD: 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.
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 regarding possession of parties to a
dispute would not be 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 that he
could not have access to any documents
required for proving his possession over suit
property. Even otherwise, it is impossible for a
commission to decide possession of a particular
party to dispute over the suit property only on
the basis of a cursory examination

It has already been observed herein above that
applications under Order XXVI Rule 9 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

Petition dismissed. (E-14)

List of Cases cited:

1. Remco Industrial Workers House Building
Coop. Society Vs Lakshmeesha M. (2003)11 SCC
666

2. Radhey Shyam & anr. Vs A.D.J. 2011 (2)
CRC 469

3. New Meena Sahkari Awas Samiti Ltd.
through its President Vs A.D.J., Lucknow passed
in Misc. Single No. 2267 of 2012

(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned
counsel
for
petitioner and learned counsel appearing on
behalf of opposite party No.2.

2. Petition under Article 227 of
Constitution of India has been filed
assailing order dated 10th January, 2018
passed by trial court rejecting petitioner's
application for issue of commission under
Order 26 Rule 9 of the Code of Civil
3 All. Km. Chandana Mukherji Vs. A.D.J., Spl. Judge P.C. Act, Lko. & Anr.
1257
Procedure as well as order dated 31st
January, 2020 passed by revisional court
dismissing the revision.

3. The limited question of law
requiring adjudication in the present
petition is whether the court below was
justified in rejecting the application filed by
petitioner-plaintiff
for
issuance
of
commission in a suit for cancellation of
sale deed and permanent injunction.

4. Learned counsel for petitioner
submits that the aforesaid suit had been
filed for cancellation of sale deed and
permanent
injunction
with
regard
to
immovable property in which both the
plaintiff as well as defendant claimed
possession over property in dispute. Under
an apprehension that status quo would be
changed by the defendants, the petitionerplaintiff was constrained to file application
for issuance of commission under Order 26
Rule 9 read with Section 151 CPC on 2nd
August, 2016. The same was rejected by
means of detailed order dated 25th
September, 2017, which became final since
no revision there against was effected. It is
submitted that subsequently in view of a
fresh apprehension on the part of plaintiff a
subsequent application under Order 26
Rule 9 read with Section 151C.P.C. was
filed on 14th November, 2017 which has
been rejected by means of impugned
orders.

5. Learned counsel for petitioner
submits that the courts below have erred in
rejecting the application for issuance of
commission in view of the fact that the suit
was not only for cancellation of sale deed
but for permanent injunction as well and
therefore it was incumbent upon the court
concerned to have indicated the status of
parties as on the date on which the
application was being made so as to
prevent any future change at the spot. It is
submitted that the trial court as well as
revisional
court
have
misdirected
themselves in rejecting the application
primarily on the ground that earlier as well
application for issuance of commission at
the behest of plaintiff had been rejected on
25th September, 2017. It is thus submitted
that the impugned order dated 10th January,
2018 is ineffective and non speaking order.
Learned counsel has placed reliance on the
judgment rendered by co-ordinate Bench of
this court in the case of New Meena
Sahkari Awas Samiti Limited through its
president versus Additional District Judge,
Lucknow passed in Misc. Single No. 2267
of 2012 to buttress his submissions to the
effect that the court can not prevent a party
from adducing best evidence, if such
evidence can be gathered with the help of
commission.

6. Learned counsel appearing on
behalf of opposite party No.2 has refuted
submissions advanced by learned counsel
for petitioner with submission that orders
impugned are in consonance with settled
law and do not warrant any inference
particularly in view of the fact that the suit
was primarily for cancellation of sale deed
in which there is no occasion for
determination of actual spot condition by
issuance of commission. It is submitted that
there is no error in the order dated 10th
January, 2018 which has been rejected
primarily on account of the fact that second
application for issuance of commission
under Order 26 Rule 9 C.P.C. has been filed
although the first one had already been
rejected on 25th September, 2017, which
became final since the same was not
contested. Learned counsel has in turn
placed reliance on a judgment rendered by
another coordinate bench of this Court in
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
the case of Radhey Ahyam and another
versus Additional District Judge and others
reported in 2011 (2) CRC 469 to buttress
his submission that purpose of appointing
commission is not to fill a lacuna in
pleadings or to find out some evidence in
favour of one or the other party.

7. Considering submissions advanced
by learned counsel for parties and perusal
of material on record, it transpires that suit
had been filed for cancellation of sale deed
and for permanent injunction. During
course of suit proceedings, an application
under Order 26 Rule 9 read with Section
151 CPC had been filed for issuance of
commission which was rejected by means
of order dated 25th September, 2017
primarily on the ground that question
regarding possession of parties over the
property in dispute can not be ascertained
by issuance of commission. It was further
held that issuance of commission can not
be a substitute for adducing evidence. It is
noticeable that the aforesaid order dated
25th September, 2017 attained finality and
no revision there against was filed by the
petitioner-plaintiff but subsequently another
application for issuance of commission
under Order 26 Rule 9 read with Section
151 CPC dated 14th November 2017 was
again filed by the plaintiff. It is relevant to
indicate that in both the applications the
applicant is Smt. Sarla who has been
brought on record as a substitute party in
place of original plaintiff Km. Chandana
Mukherji,
who
passed
away
during
pendency of suit proceedings.

8. A reading of both applications
brings to the fore the fact that essential
pleadings for issuance of commission in
both the application remain the same which
pertained to apprehension on behalf of
plaintiff that actual ground situation may be
changed by the defendant in case forcible
possession of the same is taken from the
plaintiff. The second application has been
rejected by means of impugned order dated
10th January, 2018 primarily on the ground
that earlier as well application at the behest
of plaintiff has been rejected by the court
by detailed order dated 25th September,
2017 on the same pleading raised by
plaintiff and therefore there was no merit
found in the second application for
issuance of commission. The revisional
court has also taken essentially the same
grounds for rejecting revision preferred by
plaintiff.

9. From a perusal of record, it
transpires that the purpose of issuance of
commission at the behest of plaintiff in
both applications was to ascertain alleged
possession of plaintiff over the property in
dispute.

10. 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
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
3 All. Km. Chandana Mukherji Vs. A.D.J., Spl. Judge P.C. Act, Lko. & Anr.
1259
issued, the Court shall be bound by such
rules."

11. 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.

12. 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 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 9-121969 (Ext. P-1). A clear legal issue, based
on an earlier grant dated 28-5-1965 (Ext.
D-3) and the subsequent grant dated 9-121969 (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.
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
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 plaintiff-respondent 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."

13. 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."

14. 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.

15. 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
regarding possession of parties to a dispute
would not be 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 that he could not have access to
any documents required for proving his
possession
over
suit
property.
Even
otherwise,
it
is
impossible
for
a
commission to decide possession of a
particular party to dispute over the suit
property only on the basis of a cursory
examination.

16. 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.
3 All. Smt. Malati Sharma Vs. Raj Kumar Yadav
1261

17. So far as judgment cited by
learned counsel for petitioner in the case of
New Meena Sahkari Awas Samiti (supra) is
concerned, the pronouncement of law in the
said judgment is that court can not prevent
a party from adducing best evidence if such
evidence can be gathered with the help of
commission. The judgment cited by learned
counsel for petitioner is clearly correct in
terms of provisions of Order 26 Rule 9
CPC and does not take a contrary view to
the earlier judgment of this Court that
possession of parties over property in
dispute can not be determined by issuance
of commission. As such the petitioner does
not derive any benefit from the aforesaid
judgment.

18. Considering the judgment on the
point and law as discussed herein above, no
exception can be taken to the impugned
orders and as such the petition being devoid
of merits is dismissed.
----------
(2023) 3 ILRA 1261
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 2691 of 2020
Connected With
S.C.C. Revision Defective No. 234 of 2014

Smt. Malati Sharma
 ...Defendant- Petitioner
Versus
Raj Kumar Yadav ...Plaintiff- Respondent

Counsel for the Petitioner:
Sri Kiran Arora, Sri Ram Akbal Upadhyay,
Sri Jai Govind Upadhyay

Counsel for the Respondent:
C.S.C., Sri Prakhar Tandon
A. Civil Law - Landlord-tenant dispute-
Small Causes Suit for arrears of rent and
ejectment- decreed against the tenantrespondent
(petitioner
herein)-
Small
Causes
Revision
against
decree
also
dismissed-
Order
under
challenge-
Landlord respondent title- sale deed by
erstwhile owners- Petitioner occupant as
a tenant- recital to the said effect in sale
deed- landlord issued notice to defendant
petitioner- demanding rent and arrears-
tenant failed to pay rent- hence, the suit.

B. Petitioner tenant claimed right by
means of an unregistered agreement for
sale-
impact
of
an
unregistered
instrument- otherwise required to be
registered- whether it could have been
relied otherwise for collateral purposes in
court of law proceedings- yes, but
collateral purpose is to be seen in the
nature of possession of plaintiff over the
suit
land-
no
title
flows
from
an
unregistered instrument, which in law
requires
to
be
registered-
petitioner
tenant not entitled to any benefit on the
strength of agreement for sale.

HELD: Upon bare reading of the aforesaid
paragraphs of the judgment, the conclusion
drawn would be that an unregistered document
can be looked into for collateral purposes but
the collateral purpose is to be seen in the nature
of possession of plaintiff over the suit land.
Applying the above principles to the present
case, petitioner's predecessor in interest was
admittedly tenant of the tenanted premises in
question and came to change the nature of
possessory rights from the tenant to proposed
vendee under an agreement of sale which was
never registered.

The judgment cited clearly holds that no title
flows from an unregistered instrument, which in
law is required to be registered. If that be so
then status which the predecessor in interest of
the petitioner had enjoyed and from whom
petitioner succeeded that possessory rights, at
the most would be of a tenant and to retain
possession it is necessary to make payment of
rent otherwise a tenant in default of payment of
rent would deserve ejectment under the law.
The person under an unregistered agreement