BHAGWINDER SINGH AND OTHERS Vs. JAGIR SINGH

JUDGEMENT

(1.) INSTANT revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 17.7.2013 (Annexure P -2) passed by the learned District Judge, Fatehgarh Sahib whereby appeal filed by the respondent -plaintiff has been allowed. I have heard learned counsel for the petitioners and perused the record.

(2.) LEARNED counsel for the petitioners contends that on identical facts, another suit filed by the plaintiff -respondent in respect to the same property is pending in between the same parties. The instant revision is against the impugned order dated 17.7.2013 (Annexure P -2) passed in the application under Order 39 rules 1 and 2 read with Section 151 CPC. The learned Lower Appellate Court after considering the documents, prima facie, has come to the conclusion that the controversy involves in the matter needs to be decided after taking into consideration the evidence led by the parties and has also directed the trial Court to appoint Local Commissioner, at the costs to be equally shared by the parties, who will visit the spot and prepare the site plan by taking correct measurement of the property of the parties along with construction thereon and the open spaces left thereon. The learned counsel further contends that only status quo has been ordered to be maintained till then.

(3.) SO far as the contention of learned counsel for the petitioners with regard to the filing of subsequent suit on the same facts is concerned, remedy with the petitioners was to move application under Section 10 of the CPC. Instead of approaching this Court, this fact should have been brought before the trial Court. So far as the contention of learned counsel for the petitioners regarding appointment of local commissioner by the lower Appellate Court is concerned, in view of case law rendered by the Hon'ble Supreme Court in Haryana Waqf Board vs. Shanti Sarup and others (2008) 8 Supreme Court Cases 671, Local Commissioner can be appointed, at any stage, to identify the property and encroachment etc.