t • '•' '.• •'.•-'• '^ .M h^'"i^t^ SsSs^S&-i^!S^&^»^S IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BIIASPUR fC.G.t WRIT PETITION (227) N0. ?)Q:?^ OF 2010 (S.B.I PETITIONER PLAINTFF ^a Js>- < \'.•••' .*-•' ^ ^s^ b..--" RESPONDENTS : DEFENDANTNO.l DEFENDANT N0.2 DEFENDANT N0. 3 Shabhudayal Sharma, aged about 66 years (62 years), S/o iate Shri Mulchand Sharma, Occupation - Business, Resident of Hamaipara Kharsiya, Through: the General Power of Attorney Holder Dayaram Sharma, aged about 45 years, Son of Shri Shambhudayal Sharma, Timber Businessman, Resident of Kharsiya, Tahsit Kharsiya, District Raigarh (C.G.) VERSUS 2. Akhi! Bhartiya Aghariya Samaj, Through: the President Rukhman Singh Patei, Son of Parasram Patel, aged about 68 years, Occupation Botalda, Post Botaida, Tahsil Kharsiya, District Raigarh (C.G.) State of Chhattigarh, Through: the Collector, Raigarh (C.G.) Chief Municipal Officer, Municipal Council, Kharsiya Tahsil Kharsiya, District Raigarh (C.G.) @ \./ 'w WRTr.PETITION UNDER ARTICLE 227 OFTHECOJ1STITUTIQN_OF i'l.l:3illii!l'1 ,i||.|il1]i'j!.| V i''l^x ^ H1GII COURTLQF CHHATTISGARH ^BILASNJR Writ Petition (227) No. 3073 of2010 Petitioner Shambhudayal Sharma Versus Respondents Akhil Bhartiya Aghariya Samaj & others WRITPETITONLUNDERARTICLE 227_OFLTHE_CQNSTITUTION OF INDIA (SB: Hon'ble Shri Prashant Kumar Mishra J.) Shri P. K. C. Tiwari, Senior Advocate with Shri Shashi Bhushan, Advocate for the petitioner. None for the respondent No.l. Shri R. R. Sinha, Panel Lawyer for the respondent No.2. Shri Amit Sharma, Advocate for the respondent No.3. ' QJl^EILIQray (Passed on this 16th day of November, 2010) The petitioner has filed this petition against the order dated 12th May, 2010 (Annexure P/l), passed by the District Judge, Raigarh in Civil Suit No. 5-A/2007, allowing the application under Order 39 Rule 7 of the Code of Civil Procedure, preferred by the respondent No.3 - Municipal Council, Kharasia. The petitioner/plaintiff has preferred a suit for declaration of his possession and permanent injunction on an area admeasuring 4400 square feet on nazul plot No. 48/1 (total area 32596 square feet), on the pleadings that he is enjoying a lease of the said area and yet an effort is made by the respondents to dispossess him. The order of temporary injunction was granted by the trial Court in favour of the petitioner on 2nd May, 2007. The petitioner moved an application under Order 1 Rule 10 of the C.P.C. on 23rd April, 2010 to implead the Municipal Council Kharasia ^: .^--r' "<5S. -.8^' S' 6. 7. 8. as one of the defendant. Another application under Order 39 Rule 1 and 2 of the CPC was filed by the petidoner praying for temporary injunction against the Municipal Council also. It is stated at the bar that the teinporary injunction has already been made operative against the Municipal Council, Kharasia. The defendant/respondent No.3 Municipal Council, Kharasia thereafter inoved an application under Order 39 Rule 7 of the C.P.C. on 18.6.2010 (Annexure P/10) inter alia submitting that the total area of the plot No. 48/1 is 32,596 square feet, which is open nazul land and since an area of 4400 square feet land out of the said nazul plot is subject matter of the suit, on the remaining area the Municipal Council wants to carry on activities in public interest, therefore it has become necessary to inspect and demarcate as to on which area of the plot No. 48/1 the petidoner/plaintiff is in possession and as to on which area the teraporary injunction is operative. The petitioner/plaintiff objected to the above application on the ground that the land belongs to the Government and not to the Municipal Council and that as to what kind of work in the nature of public interest is required to be carried out has not been specified. It has also been stated that the main relief is against the Government and the Government has remained ex-parte. Therefore, there is no necessity of inspection or demarcation of entire land of plot No. 48/1. Learned trial Court has allowed the application after finding that in order to find out as to in which area the order of temporary injunction is operative it is necessary to inspect and demarcate the plot No. 48/1. Learned Senior Counsel, appearing for the petitioner, draws attendon of this Court to the provisions of Order 39 Rule 7 of the C.P.C. and !ffl|i|;!!ll|l|i ^^ ^w-«@^Tfs;'siwp'-'u^8'rl^>'-^^ ^; •= submits that this provision cannot be resorted to carry out demarcation of the suit land, which is exclusive jurisdiction of the revenue authorities under Section 257 of the Chhattisgarh Land Revenue Code 1959. Otherwise also, the provisions for demarcation are made under Order 26 Rule 9 of the C.P.C. therefore the said application was not maintainable. 9. Learned counsel appearing for the respondents No.2 and 3 have argued that no interference in the impugned order is called for as it is in the interest of the petitioner/plaintiff hiraself to know as to in which area the temporary injunction is operating. Order 39 Rule 7 of the C.P.C. reads as under : " Order XXXIX - Temporary injunctions and interlocutory orders. Rule 7. Detention, preservadon, inspection, etc., of subject-matter of suit.—(1)TheCourt may, on the application of any party to a suit, and on such terms as it thinks fit - (a) make an order for the detention, preservation or inspection of any property which is the subject-raatter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purpose aforesaid authorize any sainples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. (2) The provisions as to execution of process shall apply, rautatis mutandis, to persons authorized to enter under this rule. " 10. From the contents in clause (a) of sub-rule (1) of Rule 7 it would be seen that on the application made by a party to the suit, the Court can make an order for detention or preservation or inspection of any groperty which is the subject matter of the suit or as to which any -^ ^ ». 1\ \'^ f,/y question may arise therein. Under Rule 8 of Order 39 an application under Rule7 can be made by a plaintiff or a defendant at any tiine after institution of proceedings in the suit and before making an order notice thereof is required to be given to the opposite party. 11. In AUahabad Bank Vs. Sourendra Nath Shaw and another1 a Division Bench of Calcutta High Court has held that for ascertaining the eondition of the premises or any part thereof by making local inspection, Commissioner can be appointment under Order 39 Rule 7 and not under Order 26 Rule 9 of the Code of Civil Procedure. Similar is the view taken in Nitindra Nath Roy Chowdhury and others Vs. Subhas Ch. Kar2 and Dr. Subas Chandra Rath Vs. Dr. Srinandan Mohanty3. 12. In the present case the plaintiff is claiming possession on an area admeasuring 4400 square feet on the basis that he holds a lease on the said area and thus he is endtled to protection of his possession. 13. It is not disputed by the plaintiff while replying to the Municipal Council's application under Order 39 Rule 7 of the C.P.C. that the total area of plot No. 48/1 is 32,596 square feet. It is thus, in the interest of all the concerned parties to know as to on which particular part/area, the temporary injunction, granted by the Court is operative so that the said part of the plot number, which is the suit land, can be preserved, as an order oftemporary injunction is granted in favour of the plaintiff. Even otherwise, it is the case of the Municipal Council fhat leaving the suit land admeasuring 4400 square feet the Council intends to carry on the activities in public interest for which it is necessaiy to demarcate as to on which particular area the temporary *7Galcutta80 "• ' Calcutta319 .. ^004^0C 410 (Orissa) ^;- •ISIWS ^ •• injunction, granted in favour of the plaintiff, is operating so that the order of the Court is not violated. Order 39 Rule 7 of the C.P.C. definitely provides for an inspection of any property which is subject p<«( matter of the suit and to inspect the suit land the total area of the needs to be demarcated so that the suit land is preserved to give effect to the order of temporary injunction. 14. In the opinion of this Court learned District Judge has not committed any error ofjurisdiction while granting the application under Order 39 Rule 7 of the C.P.C. In the matter of Surya Devi Rai Vs. Ram Chander Rai & others4 the Hon'ble Supreme Court has held that interference in exercise of powers under Ardcle 227 of the Constitution of India is not to be made in a routine manner and that such interference is required to be made sparingly, in rare cases, where noninterference would occasion failure of justice or the party aggrieved by the order cannot be compensated. It has also been held that mere error of law is not to be corrected if the impugned order is not prejudicial to the cause of the party, who approaches the High Court. 15. It is well established that this Court in exercise of its supervisory jurisdiction should refrain itself from interfering with the order passed by the Courts below, except in such cases where perversity, illegality, irregularity or jurisdicdonal error is writ large on the face of the record, which is not in the present case. 16. In the present case the impugned order in fact has been made for preservation of the suit land with regard to that a temporary \ injunction is granted in favour of the plaintiff. If the petitioner does not intend to protect his unlawful possession on any other part of the .-+^- • (2003) 6 SCC675 land, he should not have any coraplain about the order of the trial Court, directing inspection or deruarcation of the entire area of the land bearing plot No. 48/1. 17. For the aforesaid reasons this Court is not inclined to interfere with the impugned order. Consequently, the petition fails and is hereby dismissed. No order as to costs. —--~ Sd//- prashantKumarMishra Judge Thakur ^'