IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No.13160 of 2011 Hari Shankar Prasad & Ors Versus The State of Bihar & another ---------------------------------- ORDER 3. 17.08.2011 1. I have heard the learned senior counsel Mr. Shashi Shekhar Dwivedi on behalf of the petitioners and the learned senior counsel Mr. Siddheshwari Prasad Singh on behalf of respondent No.2. 2. This application under Article 227 of the Constitution of India has been filed by the petitioners for setting aside the order dated 27.7.2011 passed by Subordinate Judge 5th, Saran in Execution Case No. 1 of 2005 whereby the application filed by the petitioners on 16.9.2010 for appointment of Survey Knowing Pleader Commissioner for demarcation of the suit land prior to delivery of possession in favour of decree holder has been rejected. 3. The learned Senior counsel Mr. Shashi Shekhar Dwivedi appearing on behalf of the petitioners submitted that at the spot the disputed property measuring 11 kattha 1 dhur is not identifiable and, therefore, the judgment debtors petitioners filed the aforesaid application for appointment of Survey Knowing Pleader Commissioner but the learned court 2 below rejected the same without considering the fact that if suit property is not demarcated no delivery of possession could be affected. Therefore, the learned court below has failed to exercise the jurisdiction vested in it by law and the petitioners shall suffer serious loss if Commissioner is not appointed to demarcate the suit property. 4. On the other hand, the learned Senior Counsel Mr. Siddheshwari Prasad Singh submitted that the decree holder respondent No.2 filed the suit for declaration of title and eviction of the petitioners from the suit property wherein the State of Bihar was also party as defendant. The suit was decreed. The present petitioners neither appeared nor filed written statement nor contested the suit. The State of Bihar filed first appeal which was dismissed and thereafter second appeal was filed by the petitioners which was dismissed and then they filed Special Leave Application before the Hon’ble Supreme Court which too was dismissed. On the basis of the said decree of the Trial Court the decree holder respondent has filed execution case being Execution Case No. 1 of 2005. The petitioners filed objection under Section 47 of the Code of Civil Procedure in the execution case which was dismissed and then they filed Civil Revision No.2189 of 2005 before the High Court. The said revision was dismissed 3 on 5.3.2008. Against the said order the petitioners filed Special Leave Application before the Hon’ble Supreme Court being S.L.P. No. 13759 of 2008 which was again dismissed on 8.7.2008. The Special Leave Application against the judgment of the High Court in second appeal has been dismissed by the Apex Court on 25.8.2010. During this litigation the petitioners never raised the question that the suit property is not identifiable at the spot. In the schedule of the plaint the boundary of the property has been mentioned and the area has also been mentioned therefore, there is no dispute arises regarding the identity of the suit property. Moreover, the suit was filed in the year 1971 i.e. Title Suit No. 143 of 1971 but because of the delaying tactics of the petitioners judgment debtors still the delivery of possession could not be affected. The execution case is of the year 2005. The petitioners filed frivolous objections under Section 47 and went upto the Hon’ble Apex Court and they also did not file first appeal against the trial court’s judgment but when the appeal filed by State of Bihar was dismissed they directly filed second appeal before the Hon’ble Supreme Court which was dismissed and then again on frivolous ground they went to the Hon’ble Supreme Court. In this way they are lingering the matter for about 40 years. Now when the order for delivery of possession has been 4 passed by the executing court the petitioners have started third round of litigation and this frivolous application under Order 26 Rule 9, 10 C.P.C. has been filed with ulterior motive only to linger the litigation for another decade which is not maintainable. The learned counsel further submitted that under the supervisory jurisdiction the impugned order cannot be interfered with by this Court because the learned court below exercised the discretionary jurisdiction judicially. 5. From perusal of the impugned order, it appears that the learned court below considered all aspects of the matter one by one i.e. of the trial court decreed the suit and against the said decree the Supreme Court dismissed the Special Leave (Civil) Application No. 4163 of 2009 on 25.8.2010 which was filed against the judgment and decree of the High Court passed in Second Appeal No. 33 of 2005 on 12.9.2008. The petitioners filed objection under Section 47 of the Code of Civil Procedure which was rejected against which they unsuccessfully approached the High Court and then the Apex Court dismissed the Special Leave to Appeal (Civil) No. 13759 of 2008 on 8.7.2008. It appears that the boundary and area of the land has been specifically mentioned in the decree. It further appears that the executing court is of the opinion that without the appointment of Pleader Commissioner the 5 delivery of possession can be affected. 6. Order 26 Rule 9 of the Code of Civil Procedure reads as follows : “Rule 9. Commissions to make local investigations–In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 7. From the above provision it is clear that the jurisdiction under Order 26 Rule 9 C.P.C. is discretionary jurisdiction and in all cases the court is not bound to order in routine manner for appointment of Commissioner on the prayer of one party unless the Court thinks it proper for the purpose of elucidating any matter in dispute. This discretion of the Court should be exercised judiciously and not arbitrarily. The said jurisdiction is to be exercised in accordance with the circumstances of each case. Here during this period of litigation no question was ever raised regarding identity 6 of the suit property. Before none of the Court the petitioners filed any application for appointment of pleader Commissioners. In such circumstances, the learned court below considering the above facts refused to appoint Pleader Commissioner. Therefore, it cannot be said that the learned court below has arbitrarily refused to appoint the Pleader Commissioner. The learned court below has fully considered every aspect of the matter. 8. In the case of Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675 the Apex Court at paragraph 38 has laid down the circumstances in which the High Court should exercise supervisory jurisdiction. It will be better to quote some of the propositions laid down by the Hon’ble Supreme Court. The Hon’ble Supreme Court at paragraph 38 clause (4) to (7) has held as follows : “(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. 7 (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self- evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long- drawn process or reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the 8 suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if nor corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.” 9. This view of the Apex Court has been reiterated in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329 has held as follows : “An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept 9 to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.” 10. The aforesaid decisions have again been followed in the case of Kokkanda B. Poondcha and others Vs. K.D. Ganapathi and another 2011 (3) PLJR 46 SC. 11. In view of the above settled principles of law it cannot be said that the impugned order passed by the Court below is without jurisdiction or that the learned court below exercised the jurisdiction in a manner not permitted by law and thereby failure of justice or grave injustice had occasioned. In my opinion, the learned court below has rightly exercised the discretionary jurisdiction by considering all the facts and circumstances of the case. Therefore, in exercise of supervisory jurisdiction under Article 227 of the Constitution of India the impugned order calls for no interference. 12. Accordingly, this writ application is dismissed. S.S. A.F.R. (Mungeshwar Sahoo,J.)