Case Note & Summary
The dispute arose from a construction allegedly violating the petitioner's easement right of air and light. The petitioner initially invoked the civil court and obtained an injunction against the respondent from proceeding with the construction. The respondent then filed a writ petition against the Municipal Corporation, impleading the petitioner, contending that the construction was in accordance with the permission granted by the Corporation. In the writ proceedings, an application was filed for appointment of a Commissioner. A Single Judge directed the Principal District Munsiff, Vijayawada to appoint a Commissioner to inspect and submit a report to the High Court on whether the construction conformed to the permission. An Advocate Commissioner was appointed and submitted a report. Before the report was submitted, the respondent filed a Civil Revision Petition under Section 115 and obtained a stay of the Commissioner submitting the report. The Commissioner completed the inspection and returned the warrant to the Civil Judge. The respondent filed an appeal before the Division Bench against the Single Judge's order appointing the Commissioner. The Division Bench, by order dated June 19, 1996 in Writ Appeal No. 58 of 1986, held that the writ petition was not maintainable and that it would be open to the appellant to amend the plaint in the civil suit and seek appropriate remedy. The petitioner then approached the Supreme Court by special leave petition. The main legal issues considered were whether a writ appeal lies against an interlocutory order, whether the High Court was justified in directing the parties to the civil court and ignoring the Commissioner's report, and whether the respondent had abused the process of law. The petitioner's senior counsel argued that no writ appeal lies against an interlocutory order and that the respondent had abused process by obtaining a stay and preventing the use of the Commissioner's report. The Supreme Court rejected these contentions, holding that it is well settled in the High Court of Andhra Pradesh that writ appeals lie against interlocutory orders. The Court also found no abuse of process because the remedy in the civil suit had already been availed and the High Court had rightly declined to interfere. The High Court had directed the parties to approach the civil court and amend the plaint, and the petitioner could not rely on the Commissioner's report in the writ proceedings. The Supreme Court dismissed the special leave petition and directed the lower court to dispose of the suit as expeditiously as possible, within four months from the date of receipt of the order.
Headnote
A) Civil Procedure - Writ Appeal Maintainability - Interlocutory Orders - Code of Civil Procedure, 1908, Section 115; Constitution of India, 1950, Article 226 - The petitioner contended that no writ appeal lies against an interlocutory order appointing a Commissioner; the Supreme Court rejected this contention, noting that it is well settled in the High Court of Andhra Pradesh that writ appeals lie against interlocutory orders. Held that the writ appeal was maintainable. B) Civil Procedure - Abuse of Process and Concurrent Remedies - Civil Suit and Writ Proceedings - Code of Civil Procedure, 1908, Section 115; Order 26 Rule 9 - The petitioner alleged that the respondent abused process by obtaining a stay of the Commissioner's report and that the Division Bench ignored the report; the Supreme Court found no force in the contention because the remedy in the civil suit had already been availed, and the High Court rightly declined to interfere and directed parties to approach the civil court and amend the plaint, precluding reliance on the Commissioner's report. Held that there was no abuse of process and the petition was dismissed.
Issue of Consideration
Whether a writ appeal lies against an interlocutory order passed by a Single Judge appointing a Commissioner; whether the High Court erred in directing the parties to approach the civil court and amend the plaint, and in disregarding the Commissioner's report; whether the respondent abused the process of law
Final Decision
The Supreme Court dismissed the special leave petition. It held that a writ appeal lies against an interlocutory order as per the settled position of law in the High Court of Andhra Pradesh. It found no abuse of process and upheld the High Court's direction for the parties to approach the civil court and amend the plaint. The lower court was directed to dispose of the suit as expeditiously as possible, within four months from the date of receipt of the order.
Law Points
- Writ appeal lies against interlocutory order in High Court of Andhra Pradesh
- remedy in civil suit when already availed precludes writ interference
- party cannot rely on Commissioner's report obtained in writ proceedings to circumvent civil proceeding
- expeditious disposal of suit
