KIRPAL SINGH Vs. BALKAR SINGH

JUDGEMENT

(1.) This is a revision petition filed under Article 227 of the Constitution of India for setting aside the order dtd. 9/9/2021 (Annexure P-9) passed by the Court of Civil Judge (Junior Division), Nakodar, District Jalandhar in Civil Suit No.303 of 2014 titled as "Balkar Singh Versus Naranjan Singh" whereby the Court has dismissed the application (Annexure P-7) filed by the petitioners/defendants for appointment of a Local Commissioner to visit the spot for measurement of property in question.

(2.) Learned counsel for the petitioners has submitted that the respondent-plaintiff had filed a suit for grant of a decree for possession of plot bearing evacuee property No.17 measuring 10 marlas, 4 sarsai, 22 square feet, as shown red in the attached site plan situated in the abadi of Village Tanda Urra, Police Station Mehatpur, Tehsil Nakodar, District Jalandhar after removal of malba. It is submitted that in para 4 of the said suit, the plaintiff had himself admitted that his brother had filed a suit qua the property in question and one of the petitioners i.e., petitioner No.5 along with other persons had made a statement that they had no concern with the property which was plot bearing No.17 and on the said statement of petitioner No.5 and other persons, the suit was dismissed as withdrawn on 15/12/2010. It is submitted that a perusal of the plaint in the earlier suit would show that dimensions with respect to the said plot No.17 are different than the dimensions which have been mentioned in the present suit and it is in view of the same that the petitioners had moved an application for appointment of Local Commissioner to visit the spot for measurement of the property in question. It is submitted that the said application was meritorious and should have been allowed but the trial Court vide impugned order dtd. 9/9/2021 had dismissed the said application. It is submitted that allowing the same would have resulted in proper adjudication of the case.

(3.) Learned counsel appearing on behalf of the respondent, on the other hand, has opposed the present revision petition and has submitted that the appointment of Local Commissioner is governed by the provision of Order 26 Rule 9 of CPC and the said provision empowers the Court to make local investigation and it is an enabling power and the same is not a vested right with the party. It is submitted that the trial Court, after taking into consideration the entire aspects had observed that the appointment of a Local Commissioner would result in the trial Court collecting the evidence for the defendants which is not permissible in law and rather it is for both the parties to lead their own evidence in support of their pleas. It is submitted that the impugned order is in accordance with law and deserves to be upheld.