A.S. Qureshi, J.
1. The petitioner herein has challenged the order dated 26th August 1985 passed by the learned Judge, Small Causes Court, Surat, whereby the court had appointed a Commissioner with the direction to prepare a Panchnama of the local inspection in the presence of the parties and there was a further direction that if the premises are found locked, the same may be sealed by the Commissioner.
2. Mr. K.G. Vakharia, the learned Counsel for the petitioner has submitted that the impugned order of the trial court is wholly without jurisdiction and that it is likely to cause irreparable loss and injury to the present petitioner. He therefore urges that the said order be quashed and set aside under the revisional powers of this Court under Section 115 of the Civil Procedure Code.
3. Mr. S.M. Shah, the learned Counsel for respondent Nos. 1 to 6 who are original plaintiffs, has urged that the present revision is not maintainable as it does not fall within the scope of Section 115 of the Code. Mr. Shah has urged that it cannot be said that the trial court had no jurisdiction to pass the impugned order or that the court had failed to exercise the jurisdiction vested in it or that there is any material irregularity or illegality regarding jurisdiction. Mr. Shah has also urged that the present case is not covered either by Clause (a) or (b) of the proviso to Sub-section (1) of Section 115 of the Code. Mr. Vakharia has urged that this is a clear case of the court exercising jurisdiction which it did not have in as much as the trial court has ordered that the suit premises be sealed if it is found locked. Mr. Vakharia has further urged that the present case is clearly covered by Clause (b) of the proviso to Sub-section (1) of Section 115 of the Code in as much as there is failure of jurisdiction as well as it causes irreparable injury to the present petitioner who is a tenant, has been ousted from the suit premises.
4. Mr. Shah has contended that looking to the impugned order, it cannot be said that it is without jurisdiction because according to him, the first part of the order states that the Commissioner will make Panchnama after giving due notice to the parties. He therefore argues that if the premises were not locked and if the petitioner-tenant was present in the premises, the Commissioner could have given notice there and then and the Panchnama could have been made. In that event, the second part of the order would not have to be carried out. According to him, the first part of the order is completely within the jurisdiction of the court and, therefore it cannot be said that the impugned order is without jurisdiction. As regards the second part of the order with regard to sealing the premises, he has not been able to point out any provision of law which empowers the court to pass such an order. But his argument is that the second part has not to be taken separately for the purpose of deciding the legal validity of the entire order. This contention of Mr. Shah is clearly erroneous and it must be rejected. If any part of an impugned order is without jurisdiction, the entire order must go. It is not open to break up an order into pieces and pick and choose some pieces as legally valid and the others as untenable. Mr. Shah's contention that in the peculiar circumstances of the case where the plaintiffs landlords had alleged that the premises in question were not being used for the purpose it was let for a period of six months or more prior to the filing of the suit. According to him, it is essential that the condition in which the premises exists at present, must be a matter of record and therefore the Commissioner must report to the court the condition in which it is existing. Assuming that there was any jurisdiction for appointing a commissioner for reporting about the condition of the suit premises in question, at any given time, there was absolutely no justification for passing an order to seal the same if it is found locked. The order therefore being without jurisdiction, it is covered by Section 115 of the Code. The contention of Mr. Shah that neither Clause (a) nor (b) of the proviso to Sub-section (1) of Section 115 of the Code applies to this case also must be rejected because the impugned order whereby the premises are sealed, in the nature of things, must be held to cause irreparable injury to the present petitioner. Thus, it is quite clear that the trial court had exceeded its jurisdiction in ordering the sealing of premises which has resulted in unjust ouster of the tenant from the rented premises. That part of the impugned order is wholly illegal, unjust and oppressive. Hence it is held that the present revision is maintainable under Section 115 of the Code.
5. On merits also the impugned order is not sustainable on any ground whatsoever. The application Ex. 5 by the plaintiff-landlord clearly states that the court order is sought under Order 39 Rule 7 of the Code of Civil Procedure. Rule 7 empowers the court on an application of a party to a suit to make an order for the detention, preservation or inspection of any property which is the subject matter of the suit. Hence the order passed by the court under the aforesaid Rule could only be for preservation or inspection of the property. The word 'inspection' in its ordinary connotation means an observation of the state of thing at any given time. The Commissioner appointed by the court under the aforesaid Rule could only report as to what is the condition of the premises when he visits the same. It does not empower the court to pass an order whereby the premises if found locked, should be sealed for an indefinite period, the consequence of which would be an illegal ouster of the tenant. To support his contention, Mr. Shah has relied on the decision in Ksalan Swain and Ors. v. Braja Kishore Das and Ors. AIR 1980 Orissa 98. In that case, the court had the occasion to consider an order under two different provisions of the Code viz. Order 26 Rule 9 and Order 39 Rule 7. The court had pointed out that there is a distinction between the two powers conferred by the aforesaid two different rules and had noted that the legislature had advisedly used the word local 'investigation' in Order 26 Rule 9, whereas the word inspection was used in Rule 7 of Order 39. After discussing the difference in the meaning and connotation of these two phrases, the Court had noted that the word 'investigation' mean an inquiry to find out certain facts, whereas inspection merely was observation as to the state of things, The court had also noted that Order 39 appears in the Chapter on 'temporary injunctions and interlocutory orders.' Quite obviously the two provisions of the Code have different meanings and purposes. They are not this same nor inter-changeable.
6. Mr Vakharia has also relied on the decision in the case of Padamsen and Anr. v. State of Uttar Pradesh 0065/1960 : 1961CriLJ322 , wherein the Supreme Court has held that the court has power to appoint a Commissioner to report the state of affairs as they exist at any given moment. But the court has also emphasised that it is no business of the court to collect evidence for a party or even to protect the rival party from the evil consequence of its misdeeds or mistakes. The Supreme Court further observed that if a party in whose possession the books are is likely to tamper with its content or commit forgery, it is on to the other side to bring evidence to prove such tampering or forgeries. But that is no ground for ordering seizure of the books of account. From this observation of the Supreme Court, it is quite clear that the function of the court is not to facilitate any party or to assist him in collecting evidence. Mr. Vakharia has urged that is the present case also the prayer of the plaintiff is that the Commissioner may be appointed and given the direction that he may seal the premises if found locked, even if the result would be the illegal ouster of the defendant-tenant. According to Mr. Vakharia, the court has no power under order 39 Rule 7 to pass such an order.
7. Mr. Shah has heavily relied on an unreported judgment of a Division Bench of this Court (Coram: S.B. Majmudar and S.L. Talati JJ.) in Civil Revision Application No. 1537/79, wherein the facts of that case were almost identical with the facts of the present case. In both the cases, the suits were filed by the landlords against their respective tenants for eviction under Section 13(1)(K) of the Bombay Rent Act on the ground that the premises were unused for six months. In both the cases, the landlords had applied for appointment of Commissioner to report about the suit premises being locked. In that case, the Division Bench held that the court had power to appoint a Commissioner under Order 26 Rule 9 to make a report regarding the premises being locked. Relying on this Division Bench judgment, Mr. Shah has strongly urged that in the present case also the impugned order is perfectly valid and it must be upheld in this Revision. This contention of Mr. Shah cannot be accepted for various reasons. The aforesaid Division Bench judgment is distinguishable from the present case in several respects. Firstly, the Division Bench had upheld the validity of the order passed by the trial court in that case under Order 26 Rule 9. Apparently the courts attention was not drawn to the provisions of Order 39 Rule 7. In the present case, the respondents-plaintiffs themselves had prayed for an order by the trial court under the provisions of Order 39 Rule 7 and the court also has presumably passed the order under the said provisions of the Civil Procedure Code. Secondly, in the case before the Division Bench, the trial court does not seem to have ordered the sealing of the suit premises, which in the present case, has been ordered, which makes a material difference between the facts of the Division Bench judgment and those in the present case. Thirdly, in the case before the Division Bench, there does not seem to be a contention that there was a violation of the court's order in not giving notice to the other side. In the present case, it is a major grievance that the court's order regarding giving notice was violated. Hence the aforesaid judgment of the Division Bench can not help Mr. Shah in the present case.
8. Mr. Shah has laid considerable stress on the point that the impugned order passed by the trial court can be read in two distinct parts. According to him, the first part appointing the Commissioner is un-challengable. He has further urged that if the defendant-tenant was present in the suit premises, it would not have been necessary to resort to the second part of the order because the defendant-tenant could have been given oral notice in the premises itself and a Panchnama made. He therefore argues that the second half of the order regarding sealing the premises may be ignored, if it is found legally invalid. This submission of Mr. Shah must also be rejected. If any part of a composite order is bad in law, the whole order must go. Such an order of the court cannot be split into pieces and pick up some parts as valid and reject the others as invalid. Hence, it is held that the impugned order as a whole is bad in law and must be struck down.
9. In the present case, the impugned order regarding sealing of the premises is bad for another reason also. While it has resulted in an illegal, unjustifiable and oppressive ouster of the defendant-tenant from the suit premises, it will not serve any useful purpose for the plaintiff-landlord. The presence or absence of articles or goods or even layer of dust would not necessarily prove that the premises are not muse just for six months or more. To prove that the non-user for six months, the plaintiff-landlord will have to adduce some other evidence. Hence the impugned order is not justifiable on any ground whatsoever. The Supreme Court has very clearly stated in the aforementioned decision that it is no business of the court to collect evidence for a party or to protect the rival party from the possible tampering of evidence by the opposite party.
10. There is yet another serious contention raised by Mr. Vakharia. According to him, the learned Judge should not have passed the ex-parte order without hearing the petitioner-defendant. He has urged that one of the plaintiffs-landlords is practising as an advocate in that court, which fact, according to Mr. Vakharia, has weighed with the learned trial Judge. Without going into the correctness or Mr. Vakharias allegation, it must be stated very clearly, that the trial Judge need not take the facts stated and averments made in the plaint as proved facts. The facts have to be established by legal evidence which would be recorded at the hearing of the suit. At the stage of filing of the suit, it is prudent to issue the notice to the other side and hear him before granting the interim relief except in those cases where the court may reasonably feel that irreparable loss or damage would be caused to the plaintiff or mischief is likely to be committed by the defendant. In cases where the court feels that it is not necessary or proper to wait till the other side is heard, the court may grant an ex-parte ad-interim relief. In the present case, there is no reasonable ground to believe that irreparable loss to the plaintiff could be caused or that the defendant would play any mischief. Hence Mr. Vakharias contention must be upheld and it must be held that the trial court ought not to have passed the order of interim relief without hearing the other side.
The impugned order was passed on 26th August 1985. The suit premises were sealed and the report was submitted by the Commissioner on 28th August 1985. Since then the premises have remained sealed till this day. There is absolutely no justification for the ouster of the petitioner for all this period. The contention of Mr. Shah that it has remained under the seal all these days because the petitioner-tenant has not taken necessary steps to have Panchnama made and get the seal removed, cannot be accepted. When a wrongful act is done and the injury is caused, it does not lie in the mouth of a person who perpetrates an atrocity to say that the victim has not made enough effort to reduce his suffering. In this case, it is undoubtedly an atrocity committed on the petitioner-tenant by obtaining an order of sealing the suit premises under a courts order, which is wholly illegal and unjustifiable. The impugned order is not justifiable on the ground of law or logic, not even on the ground of common sense or convenience. It is open to the present petitioner to seek such remedy as may be available to him in law for his illegal ouster from the suit premises.
11. In the result, the petition succeeds. The impugned order dated 26th August l985 below Ex. 5 and order dated 28th August 1985 below Ex. 8 of the trial court are quashed, and set aside. Rule is, made absolute. In the circumstances of the case, there shall be no order as to costs.