BALRAM MAHAJAN Vs. PRAVEEN KUMAR

JUDGEMENT

(1.) This writ petition filed under Article 227 of the Constitution challenges the order dated 5.10.2012, whereby the application of the petitioner/plaintiff preferred under Order 39 Rule 7 r/w Section 151 C.P.C. is rejected by the Court below. The plaintiff filed the suit for declaration and permanent injunction. During the pendency of the suit, the plaintiff filed an application under Order 39 Rule 7 r/w Section 151 C.P.C. (Annexure P-4). In this application it was prayed that there is a dispute about the actual position of the cemented boundary wall and regarding actual position of latrine and bathroom of plaintiff. To determine the correct facts, it is necessary that the property in question be investigated. It was, therefore, prayed that the Court may appoint an Advocate or an employee of the Court for the purpose of investigation.

(2.) The prayer was opposed by the other side by filing reply (Annexure P-5). The Court below after considering the reply rejected the said application by impugned order.

(3.) Shri D.D.Bansal, learned counsel for the petitioner, submits that the impugned order is bad in law. By placing reliance on the language of Order 39 Rule 7 C.P.C., it is contended that the Court below has failed to exercise its jurisdiction. The order of Court below is based on the assumption that there exists a boundary wall.