Case Note & Summary
Two writ petitions under Article 226 of the Constitution were filed by M/s Cantreads (P) Ltd and Sri Gopalakrishna Charitable Trust challenging interlocutory orders passed by the Principal Senior Civil Judge, Mangaluru, in civil appeal RA No.30/2018. The suit had been dismissed, and the respondents (appellants in the appeal) had obtained an order on 28.04.2018 appointing a Court Commissioner for local inspection under Order XXVI Rule 9 CPC, and on 02.06.2018, the court extended a temporary injunction that had earlier expired, acting on a memo filed by the respondents. The petitioners contended that the appointment of Commissioner was procedurally flawed since no application under Order XLI Rule 27 CPC for leave to produce additional evidence was made, and that the extension of injunction on a mere memo, after expiry, was improper. They also argued that construction was largely complete except for minor interior works. The respondents defended the orders as discretionary and non-prejudicial, asserting that some works were still pending and the memo sufficed. The High Court, per Justice Krishna S. Dixit, allowed the writs and quashed both orders. On the first issue, relying on Ghalappa v Gundappa (1981 1 KLJ 401) and Satish Kumar Gupta v State of Haryana (2017) 4 SCC 760, the court held that the report of a Commissioner in appeal constitutes additional evidence under Order XLI Rule 27, and thus an application for leave is mandatory; the order under Order XXVI Rule 9 could not be considered independently. On the second issue, the court observed that after the injunction order had expired, a formal application with affidavit was necessary to give the other side an opportunity to oppose, and a memo was insufficient. Noting from photographs that construction was nearly complete, the court restrained further construction except for interior and insignificant works, and made all construction subject to the result of the appeal. Liberty was reserved to the respondents to move a proper application under Order XXVI Rule 9.
Headnote
A) Civil Procedure – Additional Evidence in Appeal – Appointment of Court Commissioner amounts to additional evidence – Code of Civil Procedure, 1908, Order XXVI Rule 9, Order XLI Rule 27 – The Appellate Court appointed a Court Commissioner for local inspection under Order XXVI Rule 9 CPC in an appeal from a dismissed suit. The petitioners challenged this as no application under Order XLI Rule 27 was made for leave to produce additional evidence. The Court held that the Commissioner's report and evidence become part of the record under Order XXVI Rule 10(2) and thus constitute additional evidence. In appeal, such appointment can only be made if the conditions under Order XLI Rule 27 are satisfied and an application for leave is made. The application for Commissioner cannot be considered independently of the appeal. Held that the order appointing Commissioner was unsustainable. (Paras 6(a)-6(c)) B) Civil Procedure – Temporary Injunction – Extension after expiry requires formal application – Code of Civil Procedure, 1908, Order XXXIX Rules 1 and 2 – The trial court had granted an injunction for two months which expired on 18.05.2018. Ten days later, on 28.05.2018, the respondents filed a memo seeking extension, which the court granted. The High Court held that while a memo may suffice in special circumstances to extend an existing order, where the order has already expired, the proper course is to file an application supported by affidavit giving the opposite party an opportunity to oppose. The order extending injunction on a mere memo was quashed. Additionally, observing that construction was largely complete with only interior works pending, the court interdicted further construction pending appeal but allowed completion of interior and insignificant works. Held that extension of injunction on memo after expiry is improper. (Paras 6(d)-6(e))
Issue of Consideration
Whether the appointment of a Court Commissioner in an appeal under Order XXVI Rule 9 CPC is valid without an application under Order XLI Rule 27 CPC for leave to produce additional evidence; Whether the extension of a temporary injunction on a memo after the order has expired is proper.
Final Decision
Both writ petitions allowed; orders dated 28.04.2018 and 02.06.2018 passed in RA No.30/2018 quashed; petitioners restrained from undertaking further construction except interior and insignificant works; construction already done subject to result of the appeal; petitioners not to plead equity; liberty reserved to respondent-appellants to move appropriate application under Order XXVI Rule 9 CPC.
Law Points
- Appointment of court commissioner in appeal amounts to additional evidence requiring leave under Order XLI Rule 27 CPC
- extension of temporary injunction after expiry requires formal application and affidavit
- not a mere memo
