# Lalti Devi & Anr v. Bindu Bihari Verma & Ors

- **Citation:** (2022) 9 ILRA 1740
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-25
- **Case number:** Writ C No. 41940 of 2013
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalti-devi-anr-v-bindu-bihari-verma-ors-48981
- **Pages:** 7

## Headnote

Law
-
Code
of
Civil
Procedrue,1908-Section 115, Order 26,
Rule 9-Civil suit-Appointment of Court
Commissioner-

The
case
of
the
respondents/plaintiffs
is
that
suit
property is a joint family property in
which a business of jewellery is being runAccording
to
the
plaint
allegation,
respondent no.2 was also a sleeping
partner in the family business to the
extent of 30% share- At the time of filing
of the suit, respondents/plaintiffs also
filed an application under Order 26 Rule 9
of C.P.C. for the appointment of the court
commissioner to make an inventory of the
accounts and gold, silver, and jewellery
lying in the stock of the firm-The trial
court instead of going into the merits of
the case proceeded to reject the same on
the ground that more than three and half
years have passed since the institution of
suit and respondents/plaintiffs have not
pressed the application therefore, there is
no
good
ground
to
appoint
court
commissioner at this stage- Hence, the
revision court has not committed any
error
in
holding
that
revision
is
maintainable against the order passed by
the trial court and has rightly remanded
the matter to the trial court to decide the
application under Order 26 Rule 9 of C.P.C.
afresh.(Para 1 to 30)

B. A Commissioner for local investigation
is deputed under Order 26 Rule 9 CPC
when
the
Court
deems
a
local
investigation to be requisite or proper for
the purpose of elucidating any matter in
dispute or for ascertaining any other
matter mentioned in the said rule. The
object of local investigation under the
above provision is to obtain evidence
which from its peculiar nature can best be
had from the spot itself. Such evidence
enables
the
Court
to
properly
and
correctly
understand
and
assess
the
evidence on record already recorded. It
clarifies or explains any point which is left
doubtful on the evidence on record- Thus,
keeping in view the law on the point in
issue, as stated herein above, and the rival
averments made by the parties as well as
the evidence on record, a Commissioner's
report
of
local
investigation
was
absolutely necessary in this case.(Para 17)
The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

1740 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid exercise shall be completed by
the respondent-Corporation within three
weeks from today.

17. The writ petition stands disposed
of with the above directions.
----------
(2022) 9 ILRA 1740
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ C No. 41940 of 2013

Lalti Devi & Anr. ...Petitioners
Versus
Bindu Bihari Verma & Ors. ....Respondents

Counsel for the Petitioners:
Sri Arvind Srivastava, Sri Ram Milan Mishra,
Sri Vinay Mishra

Counsel for the Respondents:
Sri Umesh Vats

A.
Civil
Law
-
Code
of
Civil
Procedrue,1908-Section 115, Order 26,
Rule 9-Civil suit-Appointment of Court
Commissioner-

The
case
of
the
respondents/plaintiffs
is
that
suit
property is a joint family property in
which a business of jewellery is being runAccording
to
the
plaint
allegation,
respondent no.2 was also a sleeping
partner in the family business to the
extent of 30% share- At the time of filing
of the suit, respondents/plaintiffs also
filed an application under Order 26 Rule 9
of C.P.C. for the appointment of the court
commissioner to make an inventory of the
accounts and gold, silver, and jewellery
lying in the stock of the firm-The trial
court instead of going into the merits of
the case proceeded to reject the same on
the ground that more than three and half
years have passed since the institution of
suit and respondents/plaintiffs have not
pressed the application therefore, there is
no
good
ground
to
appoint
court
commissioner at this stage- Hence, the
revision court has not committed any
error
in
holding
that
revision
is
maintainable against the order passed by
the trial court and has rightly remanded
the matter to the trial court to decide the
application under Order 26 Rule 9 of C.P.C.
afresh.(Para 1 to 30)

B. A Commissioner for local investigation
is deputed under Order 26 Rule 9 CPC
when
the
Court
deems
a
local
investigation to be requisite or proper for
the purpose of elucidating any matter in
dispute or for ascertaining any other
matter mentioned in the said rule. The
object of local investigation under the
above provision is to obtain evidence
which from its peculiar nature can best be
had from the spot itself. Such evidence
enables
the
Court
to
properly
and
correctly
understand
and
assess
the
evidence on record already recorded. It
clarifies or explains any point which is left
doubtful on the evidence on record- Thus,
keeping in view the law on the point in
issue, as stated herein above, and the rival
averments made by the parties as well as
the evidence on record, a Commissioner's
report
of
local
investigation
was
absolutely necessary in this case.(Para 17)
The writ petition is dismissed. (E-6)

List of Cases cited:

1. Rama Shanker Tiwari Vs Mahadeo & ors..
(1968) A.W.R. 103 (F.B.)

2. Haryana Waqf Board Vs Shanti Sarup & ors.
(2008) 8 SCC 761

3. Shreepat Vs Rajendra Prasad & ors.. (2000) 2
JCLR 462 SC

4.
Ponnusamy
Vs
Salem
Vaiyappamalai
Jangamar Sangam (1986) AIR Mad 33

5. New Meena Sahkari Awas Samiti Ltd. LKO. Vs
A.D.J., CT. No. 2 LKO (2016) 6 ADJ 595
9 All. Lalti Devi & Anr. Vs. Bindu Bihari Verma & Ors.
1741
6. Ram Ishwar @ Rameshwar & ors. Vs Laxmi
Narain & anr. (2007) 102 RD 258

7. Rajesh Kumar Gautam Vs Maha Mandleshwar
Vedabayasanad Geeta Ashram (2003)95 RD
521.

(Delivered by Hon'ble Saral Srivastava, J.)

1.

Heard
learned
counsel
for
petitioners.

2. The petitioners who are defendants
in the suit have assailed the order dated
03.07.2013 passed by the Additional
District Judge, Court No.1, Jaunpur in Civil
Revision No.148 of 2007 whereby the
revision court has allowed the application
of respondents/plaintiffs for appointment of
court commissioner.

3. The facts, in brief, are that
respondent no.1 and 2 instituted a suit
bearing Original Suit No.589 of 2003
praying for a decree of injunction in respect
of their 1/3 share and rendition of account
in respect of jwellery business being run in
the suit property.

4. The suit has been instituted on the
ground that the suit property was joint
property and was purchased in the name of
Urmila Devi, Lalti Devi, and Bindu Devi
through
various
sale
deeds.
The
construction lying before the sale deed on
the suit property was demolished, and a
house and shop were constructed over the
said
suit
property
after
obtaining
permission from the competent authority. It
is further pleaded that it was agreed upon
between the brothers i.e. husband of Urmila
Devi, Lalti Devi, and Bindu Devi that the
house shall remain joint property, and
business in the house shall be run in the
name of the wife of Bindu Bihari Verma
(plaintiff no.1) and Nanhe Lal Verma
(defendant no.2). It was also agreed that
business shall be run under the supervision
of Nanhe Lal Verma and in the name of
'Kirti Kunj Jwellers. In the said business,
Urmila Devi-plaintiff no.2 wife of Bindu
Bihari Verma (plaintiff no.1), and Lalti
Devi wife of Nanhe Lal Verma-(defendant
no.1) will be sleeping partners, and Nanhe
Lal Verma will act as an acting partner.

5.
It
is
further
pleaded
that
respondents/plaintiff came to know that
Bindu Devi-defendant no.3 and Ram Asrey
Verma-defendant no.4 adopted the son of
Lalti Devi and Nanhe Lal Verma. The
respondents/plaintiffs further pleaded that
they came to know that share of Bindu
Devi in the suit property has been given to
Nanhe Lal Verma which led to creating a
doubt in the mind of respondents/plaintiffs
that their share may be usurped by the
petitioners/defendants.
The
respondents/plaintiffs
demanded
the
petitioners/defendants to show accounts of
the business, but petitioners/defendants
refused to show the account of the business
which led to filing the present suit praying
for the aforesaid relief.

6.

In
the
said
suit,
respondents/plaintiffs
submitted
an
application 8Ga on 08.12.2003 under Order
26 Rule 9 of C.P.C. to prepare a map of the
suit property and also make an inventory of
gold, silver, and jwellery in the shop and
the accounts of the business.

7. The aforesaid application was
contested by the petitioners/defendants by
filing objection 20Ga contending inter-alia
that application 8Ga is misconceived.

8. The application 8Ga was rejected
by the trial count on the ground that more
than three and half years have passed since
1742 INDIAN LAW REPORTS ALLAHABAD SERIES
the
institution
of
the
suit,
but
respondents/plaintiffs did not press for
disposal of the said application, therefore,
at this stage, no ground is made out for
entertaining
the
application
8Ga.
Accordingly, the trial court dismissed the
application
8Ga
vide
order
dated
26.07.2007.

9. The respondents/plaintiffs preferred
Civil Revision No.148 of 2007 against the
order dated 26.07.2007 on the ground that
the trial court has committed material
irregularity in rejecting the application 8Ga
of the respondents/plaintiffs. The aforesaid
revision
was
contested
by
the
petitioners/defendants contending interalia
that revision under Section 115 of C.P.C.
against an order rejecting or allowing the
application is not maintainable.

10. The revision court vide order
dated 03.07.2013 allowed the revision and
remanded the matter to the trial court to
decide the application 8Ga under Order 26
Rule 9 of C.P.C. afresh.

11. Challenging the aforesaid order,
learned counsel for the petitioners has
contended that an order allowing or
rejecting the application under Order 26
Rule 9 of C.P.C. is an interlocutory order,
and as it has not decided any issue between
the parties or disposed of the suit finally,
therefore, revision is not maintainable
against the said order.

12. In support of his contention,
learned counsel for the petitioners has
placed reliance upon the judgement of this
Court in the case of Ram Ishwar @
Rameshwar and Others Vs. Laxmi Narain
and Another 2007 (102) RD 258 and
judgement of Uttrakhand High Court in the
case of Rajesh Kumar Gautam Vs. Maha
Mandleshwar
Vedabayasanad
Geeta
Ashram 2003 (95) RD 521.

13. Counsel for the respondents was
not present. However, a counter affidavit
has been filed by the respondents in which
it has been pleaded that appointment of the
court commissioner was necessary as the
suit is for accountancy. It is further stated
that an order rejecting or allowing the
application amounts to a 'case decided' and
as such revision is maintainable against the
said order.

14. I have considered the argument of
learned counsel for the petitioners and
perused the record.

15. The fact as emanates from the
record
reflects
that
case
of
the
respondents/plaintiffs is that suit property is
a joint family property in which a business
of jwellery is being run. According to the
plaint allegation, respondent no.2 was also
a sleeping partner in the family business to
the extent of 30% share. At the time of
filing of the suit, respondents/plaintiffs also
filed an application 8Ga under Order 26
Rule 9 of C.P.C. for the appointment of the
court commissioner to make an inventory
of the accounts and gold, silver, and
jwellery lying in the stock of the firm. The
trial court instead of going into the merits
of the case proceeded to reject the same on
the ground that more than three and half
years have passed since the institution of
suit and respondents/plaintiffs have not
pressed the application 8Ga filed on
08.12.2003, therefore, there is no good
ground to appoint court commissioner at
this stage.

16. The trial court did not dwell upon
the merits of the case nor endeavoured to
find out as to whether the appointment of
9 All. Lalti Devi & Anr. Vs. Bindu Bihari Verma & Ors.
1743
the court commissioner is necessary for
effective and proper adjudication of the lis
involved in the suit between the parties.

17. This Court in the case of New
Meena Sahkari Awas Samiti Ltd. LKO. Vs
Additional District Judge, CT. No. 2 LKO;
2016 6 ADJ 595, after considering various
pronouncements of the Apex Court, has
held that the court cannot prevent a party
from adducing the best evidence, if such
evidence, can be gathered with the help of
the Commissioner. In this respect, it would
be apt to reproduce paragraph no. 29, 30,
32, 33, 34, and 35 of the said judgement:-

"29. In a suit for injunction to
restrain the defendants from interfering
with
the possession
due
to
alleged
encroachment into the land of the plaintiff,
one of the methods to find out as to whether
or not there is encroachment is to have the
local investigation done by a competent
Commissioner.

30. A Commissioner for local
investigation is deputed under Order 26
Rule 9 CPC when the Court deems a local
investigation to be requisite or proper for
the purpose of elucidating any matter in
dispute or for ascertaining any other
matter mentioned in the said rule. The
object of local investigation under the
above provision is to obtain evidence which
from its peculiar nature can best be had
from the spot itself. Such evidence enables
the Court to properly and correctly
understand and assess the evidence on
record already recorded. It clarifies or
explains any point which is left doubtful on
the evidence on record.

32. Accordingly, rejected the
same on the ground that at the stage of
arguments there is no necessity for issue of
Amin Commissioner. Thus, keeping in view
the law on the point in issue, as stated
herein above, and the rival averments made
by the parties as well as the evidence on
record, a Commissioner's report of local
investigation was absolutely necessary in
this case. The appellate Court, therefore,
was not justified in rejecting the prayer of
the petitioner/ plaintiff for issue of
commission. As in the case of Ponnusamy
v.
Salem
Vaiyappamalai
Jangamar
Sangam, AIR 1986 Mad 33, it is observed
as follows : -

"The
object
of
the
local
investigation under Order 26 Rule 9 is to
collect evidence at the instance of the party
who relies on the same and which evidence
cannot be taken in Court but could be taken
only from its peculiar nature on the spot.
This evidence will elucidate a point which
may otherwise be left in doubt or ambiguity
on record. The Commissioner in effect is a
projection of the Court appointed for a
particular purpose. In this regard the
implication of Order 26, Rule 10 cannot be
lost sight of when it says that the report of
the Commissioner and the evidence taken
by him shall be evidence in the suit and
shall form part of the record. A party has a
right to place evidence which he could
require to substantiate his case before the
Court and it is the duty of the Court to
receive such evidence unless there are
other justifiable factors in law to decline to
receive it. This right of the party to adduce
evidence
gets
adjudicated
in
the
interlocutory proceedings under Order 26
Rule 9, When the Court declines to issue
the Commission asked for to make local
investigation that order certainly disposes
of the right claimed by the party to place
the requisite evidence on his behalf.
Therefore, an order refusing to appoint a
Commissioner under Order 26 Rule 9 to
make local investigation and report is a
1744 INDIAN LAW REPORTS ALLAHABAD SERIES
"case decided" and hence revisable under
Section ".

33. And in the case of Shreepat
vs. Rajendra Prasad & Ors., 2000 (2)
JCLR 462 (SC), Hon'ble the Apex Court
held as under :-

"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 side' 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".

34. In the case of Haryana Waqf
Board vs. Shanti Sarup and others (2008) 8
SCC 761, Hon'ble the Supreme Court held
as under:-

"It is also not in dispute that even
before the appellate court, the appellant
Board had filed an application for
appointment of a Local Commissioner for
demarcation of the suit land. In our view,
this aspect of the matter was not at all gone
into by the High Court while dismissing the
second appeal summarily. The High Court
ought to have considered whether in view
of the nature of dispute and in the facts of
the present case, whether the Local
Commissioner should be appointed for the
purpose of demarcation in respect of the
suit land."

35. Accordingly, the Court cannot
prevent a party from adducing the best
evidence, if such evidence can be gathered
with the help of a Commissioner. Refusal of
the request of the party to appoint a
Commissioner under Order 26 Rule 9 CPC
to make a local investigation in an
appropriate case amounts to failure of
exercise of jurisdiction vested in it. In this
view of the matter, I find that the impugned
order cannot be sustained and the action
on the part of appellate court, rejecting the
prayer of the petitioner/ plaintiff for issue
of commission most probably will produce
error or defect in the decision of the case
on merits. Therefore, the impugned order
dated 23.2.2012 passed by opposite party
no.1/ Additional District Judge, Court no.2
Lucknow liable to be set aside."

18. In view of the judgement of this
Court in the case of New Meena Sahkari
Awas Samiti Ltd. (supra), the trial court in
the instant case ought to have considered
the application of the respondent under
Order 26 Rule 9 of C.P.C. on merit so as
the valuable rights of the respondents to
produce the best evidence may not be
defeated. The trial court instead of
considering the application under Order 26
Rule 9 of C.P.C. on merit took a very
technical
approach
in
rejecting
the
application of respondents.

19. In such view of the fact, this Court
finds that the trial court has committed
jurisdictional error in not deciding the
application 8Ga within the parameters of
Order 26 Rule 9 of C.P.C. rather it was
swayed by the fact of delay in pressing the
application 8Ga by the respondents/plaintiffs.
9 All. Lalti Devi & Anr. Vs. Bindu Bihari Verma & Ors.
1745

20. Now, the question which arises
for consideration is whether in the facts of
the present case when the trial court has
committed jurisdictional error in rejecting
the application 8Ga whether revision under
Section 115 of C.P.C. as applicable in the
State of U.P. shall lie or not.

21. In this respect, it would be apt to
reproduce Section 115 C.P.C. as applicable
in the States of U.P:-

"115. Revision (1) A superior
court may revise an order passed in a case
decided in an original suit or other
proceeding by a subordinate court where no
appeal lies against the order and where the
subordinate court has--

(a) exercised a jurisdiction not
vested in it by law; or

(b)
failed
to
exercise
a
jurisdiction so vested; or

(c) acted in exercise of its
jurisdiction illegally or with material
irregularity.

(2) A revision application under
sub-section (1), when filed in the High
Court, shall contain a certificate on the first
page of such application, below the title of
the case, to the effect that no revision in the
case lies to the district court but lies only to
the High Court either because of valuation
or because the order sought to be revised
was passed by the district court.

(3)The superior court shall not,
under this section, very or reverse any
order made except where,-

(i) the order, if it had been made
in favour of the party applying for revision,
would have finally disposed of the suit or
other proceeding; or

(ii) the order, if allowed to stand,
would occasion a failure of justice or cause
irreparable injury to the party against
whom it is made."

22. In the case of Rama Shanker
Tiwari Vs. Mahadeo and Others 1968
A.W.R. 103 (F.B.), Full Bench considered
the meaning of the 'case decided' and held
that the order allowing or disallowing an
application for amendment in pleading is a
case decided and is revisable in this
Section, if the amendment sought has or is
likely to have a direct bearing on the rights
and obligation of the parties. Paras 23 & 24
of the said judgement are reproduced
herein below:-

"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.
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."
1746 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Now, applying the principles laid
down in the case of Rama Shanker Tiwari
(supra), it can safely be concluded that if
an order deciding an application would
have a direct bearing on the rights of the
parties, if it is allowed or rejected, same
would amount to 'case decided' and
revision would lie.

24. Section 115 (3) (ii) of C.P.C. as
applicable in Uttar Pradesh clearly states
that the order, if allowed to stand, results in
failure of justice or causes irreparable
injury to the party against whom it is made,
the revision under Section 115 of C.P.C as
applicable in the State of U.P. is
maintainable.

25. Viewed from this angle, if any
order illegally passed by the court below on
any application is allowed to stand
affecting the rights of parties, it would
cause the failure of justice or cause
irreparable injury to the party against
whom it is made, therefore, if said
condition is present, the revision against
such order passed by the court below vide
Section 115 (3) (ii) of C.P.C. as applicable
in the State of U.P. would lie.

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.

27. So far as the judgement relied upon
by the learned counsel for the petitioners in
the case of Ram Ishwar @ Rameshwar
(supra) is concerned, this Court finds that in
the said case, the Court did not consider the
Full Bench judgement of this Court in the
case of Rama Shanker Tiwari (supra) which
defines the meaning of 'case decided' and
further the Court has not considered the issue
in the light of Section 115 (3)(ii) of C.P.C. as
applicable in the State of U.P.

28. So far as another judgement relied
upon by the learned counsel for the
petitioner in the case of Uttrakhand High
Court in the case of Rajesh Kumar Gautam
(supra) is concerned, the Uttrakhand High
Court was considering Section 115 of
Central Act and did not consider the Section
115 of C.P.C. as applicable in the State of
U.P.

29. In such view of the fact, this Court
finds that the revision court has not
committed any error in holding that revision
is maintainable against the order passed by
the trial court and has rightly remanded the
matter to the trial court to decide the
application under Order 26 Rule 9 of C.P.C.
afresh.

30. Thus, for the reasons writ petition
lacks merit and is accordingly, dismissed
with no order as to costs.
----------
(2022) 9 ILRA 1746
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2022

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Habeas Corpus Writ No. 402 of 2022

Poonam Kushwaha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents