NIRMALA KHARE Vs. SURENDRA PATHAK

JUDGEMENT

(1.) ALTHOUGH this matter is listed today for admission but looking to the nature of the question involved in this petition, with the consent of the parties, the same is heard for final disposal. The petitioner has filed this petition under Article 227 of the Constitution of India for quashment of order dated 12.1.2010 Annex. P/1 passed by the IV Civil Judge -II, Sagar in C.O.S. No. 16 -A/09 whereby the petitioner's application filed under Order 26 rule 9 read with section 151 of the C.P.C. for appointment of the Commissioner to call the Commissioner Report regarding measurement of the disputed property, has been dismissed.

(2.) HAVING heard the counsel, keeping in view their argument, I have carefully gone through the papers placed on the record along with the impugned order. As per averment of the plaint Annex. P/2 as well as the written statement Annex. P/3 there is a dispute between the parties regarding measurement of their respective plots and such dispute, besides the evidence which would be recorded by the trial court, could not be resolved without calling the Commissioner Report after carrying out the measurement of both the plots.

(3.) IN view of the aforesaid discussion, the impugned order Annex. P/1 rejecting the application of the petitioner Annex. P/5 being perverse and contrary to the settled proposition of the law, is not sustainable. Consequently, by allowing this petition, the same is set aside. Pursuant to it, by allowing the aforesaid application Annex. P/5, the trial court is directed to appoint the Commissioner and call the measurement/demarcation report of the disputed plots on the record and such report be also considered by such court at the stage of appreciation of the recorded evidence in the matter. Petition is allowed. Their shall be no order as to the cost.