MADAN MOHAN LAL JAIN Vs. CHANDER VATI DEVI

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India raises an important question of the jurisdiction of a Civil Court to appoint a Local Commissioner in the exercise of inherent powers under Section 151 of the Code of Civil Procedure.

(2.) The dispute between the parties relates to premises No. S-231, Panchsheel Park, New Delhi built on a leasehold plot of land. Smt. Sulakshana Malhan (Respondent No. 2) was the exclusive owner of the said premises. She entered into an agreement on September 11, 1976 with the petitioner for letting out the said premises at a monthly rent of Rs. 1200.00 . There are other conditions in the lease agreement with which this Court is not concerned in the present proceedings. The said premises are a single storeyed house. Smt. Mohini Devi (Respondent No. 3) lost her husband leaving behind a minor son and she came back from England to settle in, India. Respondent No. 2 executed a gift deed in favour of respondent No. 3 transferring out of love and affection half share in the said premises. The name of respondent No. 3 is alleged to have been entered as joint owner in the records of the Panch Shiela Cooperative House Building Society, Delhi Development Authority and the Municipal Corporation of Delhi. Respondents 2 and 3 submitted plans for the construction of first floor of the said premises. The plans were duly sanctioned by the competent authorities. Respondents 2 and 3 took steps to store the building material at the open. space of the said premises and wanted to commennnence the construction of the first floor of the building. The petitioner started objecting to the construction of the first floor and thus the relations between the parties became strained. Respondent No. 4 is the mother of respondents 2 and 3. Respondents 2 to 4 filed a civil suit for permanent injunction against the petitioner herein for restraining him from obstructing their construction activity. Respondents 2 to 4 also filed an application for the grant of an interim injunction. Shri 0. P. Gogne, Sub Judge 1st Class, Delhi by his order dated September 6, 1979 came to the conclusion that respondents 2 to 4 had shown a prima fade case and also the balance of convenience in their favour; that in case the temporary injunction was not granted, they might suffer irreparable loss because respondent No. 3 being a widow and helpless lady wanted to settle down in. Delhi along with her son and for that purpose she sought to have shelter by constructing the first floor of the house in question and that on the other hand, no loss was going to be caused to the petitioner by the construction of the first floor. In the result, the petitioner and other defendants in the suit were restrained from obstructing respondents 2 to 4 in the construction of the first floor of house No. S-231, Panchsheel Park, New Delhi till the disposal of the suit. An appeal was directed against the order dated September 6, 1979 passed by Shri 0. P. Gogne, Sub Judge 1st Glass, Delhi. The appeal was dismissed by Shri K.S.Gupta, Additional District Judge, Delhi in his order dated April 22, 1980. Being aggrieved, the petitioner filed a revision petition under Section 115 of the Code of Civil Procedure in this Court. The revision petition was dismissed with costs on May 23, 1980. The petitioner then filed a special leave petition (Givil), being No. 5527/80 from the judgment and order of this Court dated May 23, 1980. The special leave petition was, however, permitted to be withdrawn on May 30, 1980.

(3.) In the meanwhile, respondents 2 to 4 filed an application under Section 151 of the Code of Givil Procedure before the trial Court alleging that after the decision of the High Court, the petitioner and defendants in the suit have become desperate and have locked the main gate and also the staircase leading to the first floor where the construction is to be carried on with a view to obstruct the entry of respondents 2 to 4 and their servants and labourers for executing the work of construction in the property. A prayer is made in that application that the Court may appoint some Local Commissioner to go to the spot and get the construction commenced and he may also be permitted to gat the locks of the main gate and staircase removed/ broken in order to enable the construction commenced in the interest of justice. An objection was raised by the petitioner before the trial Court that the Local Commissioner could not be appointed having regard to the provisions of Section 75 read with Order XXVI oF the Code of Givil Procedure. The trial Court repelled that objection and expressed the opinion that having regard to the circumstances and the conduct of the petitioner and other defendants in the suit in not allowing respondents 2 to 4 to commence the construction work despite the injunction order operating against them, respondents 2 to 4 were within their rights to seek the assistance of the Court to get the construction work commenced and that ends of justice demand that the relief sought by respondents 2 to 4 should be granted to them. Accordingly, that application was allowed and Shri Jaspal Singh, Advocate was appointed as Local Commissioner with the direction to visit the spot on the day the respondent 2 to 4 intended to start the construction work on the first floor of house No. S-231, Panchsheel Park, New Delhi and to get the construction work commenced in his presence. It was further directed that in case the main gate and the staircase of the said building were locked by the defendants in the suit, the Local Commissioner should ask them for the keys and in case of their non-availability or on account of their refusal, he should get the locks removed/broken in order to enable the commencement of the construction. These orders were passed on May 31, 1980 by Shri 0. P. Gogne, Sub Judge, 1st Glass, Delhi which are impugned in the present petition under Article 227 of the Constitution.