KISHORE H DESAI Vs. LILAWATI VIRJI CHHEDA

JUDGEMENT

(1.) WHETHER a commission for local investigation under Order 26, Rule 9 of the Code of Civil procedure can be issued ex parte? If so, whether the commission can be executed without notice to both the parties ? Is the report of the Commissioner, in such a case, receivable in evidence? Whether the rules relating to Caveat under section 148-A of the Code of civil Procedure apply to the issuance of any commission ? These are the questions which require to be determined in this civil revision application.

(2.) NOW to certain minimum facts. In fact, the litigation between the parties and the way it has multiplied reminds one of what Lord Simon once said: "the bitter waters would never ebb", (Re Ampthill Pearage case) (1976) 2 All E. R. 411,. So much so, Mr. Dave informs me that the petitioners have been filing their caveats once in three months in all the three Courts, the Small Causes Court, the Bombay City Civil Court and the High Court for the last few years. It all began in October 1981 when the landlord (the deceased father of respondent Nos. 1 to 5) filed a suit as against the tenant (deceased father of petitioner No. 1) being R. A. E. Suit No. 1317/4317 of 1981, on the ground of non-user of the suit premises for a period of six months or more, and on the ground of the tenant having acquired a suitable premises elsewhere. On April 25, 1982, the decree was executed in the absence of the tenant. On June, 27, 1982, the petitioner as also two others were arrested at the instance of the landlord on the allegation of house breaking and other charges. On March 21, 1983, the accused were discharged by the learned Magistrate. In the meanwhile the tenant made an application for setting aside the ex-parte, and for restoration of the possession. On April 21, 1983, the appellate Bench of the Small Causes Court at Bombay, set aside the ex parte decree and passed an order for restoration of possession. As against this, the landlord filed a writ petition which came to be dismissed by this court on June 14, 1983. A. S. L. P. was filed in the Supreme Court which was also rejected. The Supreme Court granted four months time to the landlord subject to his filing an undertaking which was to be filed within six weeks, to vacate and handover the possession back to the tenant. The undertaking was not filed. When the order for restoration of possession was sought to be executed certain obstructions came on the scene. This led to a contempt petition in the High court. By an order dated September 16, 1983, possession was ordered to be restored to the tenant. Possession was accordingly restored on September 24, 1983. On October 24, 1983, the tenant filed an application, for mesne profits and damages, which is still pending in that Court.

(3.) IN the meanwhile the landlord filed a second suit as against the tenant on January 30, 1984 being R. A. E. Suit No. 83/311 of 1984, on the ground of arrears of rent. On February 19, 1985, the plaintiff again obtained an ex-parte decree and the decree was sought to be executed on June 11, 1985. On June 19, 1985, an application was made for setting aside the ex-parte decree and it appears that application is pending.