PREM SINGH CHOUHAN Vs. L M PANDEY

JUDGEMENT

(1.) Heard.

(2.) This revision has been preferred against the order dated 9-11-2001 passed by the IInd Additional District Judge, Durg whereby a direction has been issued by the Court to the Lokayukt, Raipur to enquire into the matter. The brief facts of the case are that the defendant entered into an agreement with the plaintiff for the sale of a Nazul plot owned by defendant for Rs. 24,00,000.00. It is contended that the defendant obtained Rs. 9,00,000.00in advance from the plaintiff but thereafter the rest amount was not paid to the defendant. The plaintiff filed a suit for specific performance along with an application under Order 39 Rules (1) and (2) for temporary injunction. The defendant filed an application seeking direction for enquiry against the plaintiff regarding the source of funds by itself or income through the Income Tax Department and other Government machinery. The contention of the plaintiff was that such application was not maintainable as enquiry regarding his conduct as Public Servant or the source of income was not at all relevant nor was within the jurisdiction of the Court. The Trial Court by the impugned order directed enquiry by Lokayukt, Raipur. While noting the contentions, by order dated 9-11-2001 the learned Judge has directed as under :-- A perusal of the aforesaid paragraphs goes to show the nature of allegations. The Court ought to have called for the affidavit of the person making such allegations and the basis on which such allegations have been made. This part of the direction contained in impugned order dated 9-11-2001 issued by the learned Trial Court is against the practice of holding of an enquiry by Lokayukt. It is pointed out that at the time when the order was passed, M.P. Lokayukt Avam Up-Lokayukt Adhiniyam, 1981 was in force. In exercise of power vested under Section 17 of the M.P. Lokayukt and Up-Lokayukt Adhiniyam, 1981, Investigation Rules, 1982 have been framed. The procedure for filing complaint is contained in Rule 6 of the M.P. Lokayukta Evam Up-Lokayukta (Investigation) Rules, 1982 which is quoted below :-- "6. Complaint.-- (i) A complaint shall be signed by the complainant and shall be made in Form I and in case the complaint is against a Minister or Secretary, it shall be accompanied by an affidavit in Form II in support of its contents. In case of complaints against other categories of Public servants, the complainant is required to submit affidavit in Form II only if directed to do so by the Lokayukt or the Up-Lokayukt. (ii) A complaint may be .......[VERNACULAR TEXT OMMITED]...... presented to the Secretary to the Lokayukt or be sent under registered cover." Lokayukta Sangathan in the State of Madhya Pradesh is an institution itself. The persons holding the office of Lokayukt and Up-Lokayukt have status; they discharge their functions under the Act, Rules and relevant law. The learned Trial Judge has not at all looked into the provisions of Lok Ayukta and Up-Lokayukta Adhiniyam, 1981. It is unfortunate that the direction to conduct enquiry by Lokayukt into the plaintiff's sources of income and the advance payment made by him, has been issued without even caring to read the provisions of Lokayukt and Up-Lokayukt Adhiniyam and the rules made there under. Such a casual approach on the part of the Trial Judge cannot be appreciated especially when the application seeking enquiry into the sources of income of the plaintiff was under no provisions of CPC, and had no relation with the present matter whatsoever. This matter has been dealt with in detail in case of Suneel Kumar Jain v. State of M.P. reported in 2000(2) M.P.H.T 76 = 2000(1) JLJ 118. In the present case, either the State or Lokayukt are not at all parties or no notice has been issued and no averment is there regarding the function of the Lokayukt.

(3.) The learned Presiding Officer has acted in callous manner and caused miscarriage of justice. The order passed regarding enquiry by Lokayukt is within the ambit of a final order. Shri H.B. Agrawal, learned Counsel appearing for the respondent was not in a position to state as far as the jurisdiction under Section 115 of CPC is concerned and he submitted that he is not in a position to support the said order and prayed that the direction contained in the impugned order may be set aside as the same is not sustainable. The matter is regarding specific performance of the contract. The issue is whether there was valid contract and the applicant is ready and willing to perform the same. So far as enquiry regarding the source of income and conduct of the Govt. servant is concerned, that matter was not already an issue before the learned Presiding Officer. An enquiry into the matter could only be made under the provisions of Code of Criminal Procedure and under the provisions of Prevention of Corruption Act. While exercising the civil jurisdiction such type of direction cannot be given by learned Presiding Judge because what cannot be done directly, that cannot be done indirectly. Having considered the facts and circumstances of the case and material on record and further in view of the stand taken by the learned Counsel for the respondent, the revision is allowed. The impugned order is-set aside. The proceedings before the Trial Court may go on. This Court was inclined to issue notice to the learned Presiding Judge, but since, it has been informed that he has already retired, the matter is dropped with the observation that the Courts below have to be careful. Certified copy as per rules.