CENTRAL BANK OF INDIA Vs. AMBALAL BHIKHUBHAI PATEL

JUDGEMENT

(1.) This petition has been preferred under Articles 226 and 227 of the Constitution of India, with a prayer to quash and set aside order dated 12.11.2009, passed by the Trial Court below application at Exh.62, whereby, the said application filed by the petitioner under the provisions of Order-26, Rule-9, read with Section-151 of the Code of Civil Procedure (for short "the Code"), for appointment of a Court Commissioner, has been rejected.

(2.) The brief facts, necessary for the decision of the petition, are that the petitioner, a nationalized bank, is the tenant of the suit premises, of which the respondent is the landlord. According to the petitioner, the tenancy of the petitioner is to continue upto 31.03.2013, as per Lease Deed entered into between the petitioner and the respondent. Prior to the expiry of the said lease, the respondent (original plaintiff) instituted a civil suit being Civil Suit No.286/2007, against the petitioner, inter-alia, praying that the possession of the suit premises be taken from the petitioner and handed over to the respondent, on the ground of personal requirement. The petitioner filed a written statement contesting the averments made in the plaint. It is the case of the petitioner that during the pendency of the suit, the respondent has constructed a house, where he is residing with his wife, at present. In view of this material development, the petitioner is desirous of placing the said fact on record for proper adjudication of the suit (as mentioned in Paragraph-6 of the memorandum of petition). The petitioner made an application for appointment of a Court Commissioner at Exh.62, which has been rejected by passing the impugned order, giving rise to the filing of the petition.

(3.) Mr.Siddharth A. Samal, learned counsel for the petitioner has submitted that the application of the petitioner for appointment of a Court Commissioner was an innocuous one, which ought not to have been rejected by the Trial Court, as the appointment of a Court Commissioner would not have caused any prejudice to the respondent, but would have elucidated the matter in dispute and aided in the proper adjudication of the suit. It is further submitted that the impugned order is erroneous, as it has been mentioned therein that the petitioner has filed the application in order to delay the proceedings, whereas the proceedings would have been expeditiously terminated, had the application been allowed, as it would have been evident that the petitioner no longer has a cause of action to maintain the suit. That the observations made in the impugned order to the effect that, by filing the application, the petitioner has cast the burden of proof upon the Court alone, are not sustainable in law, as the only object of the petitioner is to bring to light and elucidate the matter in dispute, hence, the impugned order may be quashed and set aside and the petition, allowed.