REKHA SUMAN Vs. JANARDAN PRASAD

JUDGEMENT

(1.) By means of present writ petition, petitioner has sought quashing of order dtd. 1/7/2024 passed by District Judge, Pauri Garhwal in Civil Revision No.22/2023 "Smt. Rekha Suman vs. Janardhan Prasad" as well as the order dtd. 25/8/2023 passed by Civil Judge (Sr. Div.) Pauri.

(2.) Learned counsel for the petitioner/plaintiff would submit that the petitioner/plaintiff filed a civil suit before Civil Judge (S.D.) Pauri for a decree permanent injunction against the respondent/defendant on the ground that the petitioner/plaintiff had purchased the land in question way back in the year 1997; that, she was posted as Lecturer in District Saharanpur, State of U.P., therefore, she could not look after the suit property; that, during her stay outside, respondent/defendant took the benefit of it and encroached upon part of suit property; that, the respondent/defendant filed the written statement; that, thereafter, the petitioner/plaintiff filed application under Order 26 Rule 9 of CPC for appointment of a Survey Commissioner to demarcate exact area upon which respondent/defendant has encroached upon; that, the respondent/defendant filed objections to this application; that, the learned trial court vide impugned order dtd. 25/8/2023, dismissed the application of the petitioner/plaintiff; that, being aggrieved, revision was preferred, which was also dismissed vide impugned order dtd. 1/7/2024, hence, this writ petition.

(3.) Learned counsel for the petitioner/plaintiff would submit that to get the exact area of land on which the respondent/defendant has encroached upon it is imperative to issue a Commission but the Trial Court failed in appreciating the provisions of Order 26 Rule 9 CPC and committed illegality by dismissing the application. In support of his case, he would place reliance on a judgment rendered by Hon'ble Supreme Court in re "Haryana Waqf Board vs. Shanti Sarup and Others (2008) 8 SCC 671" and has referred para 6 which is quoted as under:-