The Single Bench of Justice Javaid Iqbal Wani of the High Court of J&K and Ladakh while exercising jurisdiction under Article 227 of the Constitution in a Petition wherein the Petitioner had assailed an order passed by the Court of Principal District Judge, Jammu (hereinafter referred to as ‘trial court’), observed that Order 39 Rule 7 C.P.C is only ‘enabling provision’ which does not compel the Court to pass an order as sought by the party.
In the case at hand the Respondents (Plaintiffs before the Trial Court) instituted a suit for possession under Section 6 of the Specific Relief Act, 1963 against the Petitioners/Defendants. Besides, alongside the aforesaidsuit an application for interim relief also came to be filed, which, however, was not pressed by the Respondents/Plaintiffs. Additionally, the Respondents/Plaintiffs also filed an independent application seeking inspection of the suit property by appointment of a Commissioner. The said application was opposed by the Petitioner/Defendant on the ground that the same is aimed at creating an evidence in their favour. The Trial Court, however, came to allow the application while treating it as having been filed under Order 39 Rule (7) of the Code of Civil Procedure (C.P.C). It was this order that came under challenge before the High Court.
The High Court upon consideration of the matter while referring to Order 39 Rule (7) of C.P.C observed that the provision enables the Court “to order detention, preservation or inspection of any property which is the subject matter of a suit and for the said purpose the Court can authorize any person to enter upon any such property in order to record the existing condition of the property so that, later on, if there is any change, deterioration or mischief by any of the parties thereto that can be known to the Court and appropriate orders can be passed.”
The Court also observed that the provision prima facie is ‘directory’ and ‘discretionary’ in nature and not ‘mandatory’ or ‘obligatory’.
The Court also, while referring to Order 26 Rule (9) C.P.C, observed, “the object of the provision of making local investigation is not to collect evidence which can be adduced in the Court but to obtain material which from its very peculiar nature can best be had only on the spot.” Further, the Court heldOrder 26 Rule (9) to also be an enabling, and a discretionary provision.
The High Court went on to draw a distinction between the two provisions, that is, Order 39 Rule (7) and Order 26 Rule (9), and observed, “there is a manifest distinction therein the said provisions under Order 39 Rule (7) has the object of keeping on record the existing condition of property so that if the same is subjected to any change later on, any deterioration or mischief by any party, that can be known by the Court if and when desired or required, whereas the purpose of the provisions of Order 26 Rule (9) is to ascertain, collect or elucidate facts in respect of any matter in dispute after proper scrutiny and examination of the material without doing anything to collect evidence for a party as it is no business of a Court.”
The Court also noted that the provisions of Order 39 Rule (7) are applicable to disposal of interlocutory applications, whereas those of Order 26 Rule (9) are applicable to determination of lis between the parties.
In the instant case, the Court while noting that since the interim application was not pressed by the Respondents/Plaintiffs, the Trial Court could not have invoked the provisions of Order 39 Rule (7) of CPC in the matter, and it has committed grave perversity while passing the impugned order by invoking the provisions of Order 39 Rule (7) of CPC having overlooked the import of Order 26 Rule (9) of CPC. Holding thus, the Court while allowing the Petition, set-aside the order impugned passed by the Court of Principal District Judge, Jammu.
