CPC | Power Of Court To Preserve Existing Condition Of Property Distinct From Power To Ascertain, Collect Or Elucidate Facts In Dispute: J&K HC

Clarifying the purpose of each provision and how it prevents misuse by parties in a lawsuit Justice Javed Iqbal Wani observed,

“It is pertinent to note here that the provisions of Order 39 Rule (7) of CPC are applicable for the disposal of an interlocutory application, whereas the provisions of Order 26 Rule (9) has its relevance on determination of the lis between the parties”

The case involved a property dispute between Rachna Gupta (petitioner) and Dr. Parmodh Baru and Dr. Ajay Dogra (respondents). The respondents filed a suit claiming possession of a plot of land, alleging they had been in adverse possession for years. While the suit was ongoing, they also filed an application seeking appointment of a Commissioner to inspect the property.

The trial court, in an impugned order, allowed the application and appointed a Commissioner under Order 39 Rule (7) of the CPC. This order was challenged by the petitioner before the High Court.

Upon meticulously examining the provisions, Justice Wani noted a significant difference between Order 39 Rule (7) and Order 26 Rule (9). Order 39 Rule (7) empowers the court to order inspection of property to preserve its existing condition and prevent future damage by any party. It is used for interlocutory applications, before the final judgment.

On the other hand, Order 26 Rule (9) allows the court to appoint a commission to investigate specific disputed facts during the trial itself. Here, the purpose is to gather evidence, not merely preserve the property's condition.

The High Court observed that the respondents, having already submitted photographs and videography of the property with their suit, did not require the Commissioner's inspection under Order 39 Rule (7). The trial court, the High Court pointed out, had 'misdirected itself' by invoking the wrong provision and overlooking the purpose of Order 26 Rule (9).

“Under the aforesaid facts and circumstances, the Trial Court could not have invoked the provisions of Order 39 Rule (7) of CPC in the matter, in that, the application for interim relief had not been pressed by the plaintiffs/respondents herein, inasmuch as, the position obtaining on spot pertaining to the subject matter in dispute have had already been brought on record in the shape of photographs and videography by the plaintiffs/respondents herein along with the suit”, the bench remarked.

Citing the Supreme Court judgment in Padam Sen vs State of Uttar Pradesh (AIR 1961 SC 218), the bench reiterated that courts cannot collect evidence for parties.

In conclusion, the court quashed the trial court's order and consequently, the report, if any, made by the Commissioner appointed by the Trial Court pursuant to the impugned order was declared to be non-existent, inoperative and ineffective.

Case Title: Smt. Rachna Gupta Vs Dr. Parmodh Baru.

Citation: 2024 LiveLaw (JKL) 40

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