NATHU RAM Vs. PADAM CHAND

JUDGEMENT

(1.) This is a petition under Article 227 of the Constitution of India against the order dated 9.11.2009 passed by learned Civil Judge ( Senior Division) Court No.1, Rohru in CMA No.180/6 of 2009. The petitioners were defendants. On the application of respondent under Order 26 Rule 9 CPC, Tehsildar Chirgaon was appointed as Local Commissioner who had submitted his report dated 2.8.2009. The petitioners had filed the objections and the respondent had filed reply to the objections.

(2.) The learned Civil Judge has decided the objections on 9.11.2009. In the impugned order it has been observed that report of the Local Commissioner is subject to cross-examination by objectors and they had full liberty to cross-examine the Local Commissioner when he appeared in the witness box. The learned Civil Judge has rejected the objections and has accepted the report of the Local Commissioner in evidence by virtue of impugned order. It has been submitted by learned counsel for the parties jointly that Local Commissioner has not yet been examined by either side in the Court below. The impugned order is factually incorrect. There is no question of cross-examination of Local Commissioner when he has not appeared in the witness box. In these circumstances, the impugned order is set aside. The learned Civil Judge is directed to decide the objections in accordance with law after giving opportunity to the parties to lead their evidence. The parties through their counsel are directed to appear before the trial Court on 23.3.2010. The record of the trial Court be remitted back so as to reach before the date fixed.

(3.) In view of the disposal of main petition, CMP No.989 of 2009 and 990 of 2009 are rendered infructuous. Interim order dated 27.11.2009 passed in CMP No.989 of 2009 stands vacated.