ROSHAN LAL Vs. JAIMAL CHAND

JUDGEMENT

(1.) Annexure P-3 has been passed by learned Civil Judge (Junior Division), Barsar, District Hamirpur in an application filed under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure registered as CMA No. (Civil Suit No. 04 of 2011) 430 of 2015, whereby the application has been dismissed and the prayer to appoint the Local Commissioner to conduct local inspection, is declined.

(2.) The record available at this stage reveals that the petitioner (hereinafter referred to as the 'plaintiff') has sought the decree for permanent prohibitory injunction restraining the respondent (hereinafter referred to as the 'defendant') from raising any construction over the suit land entered in Khata No. 130min, Khatauni No. 141, Khasra No. 1219, 1294 Kita-2 measuring 0-40-69 hectares situated in Tikka Nanawan, Tappa Nanawan, Tehsil Barsar, District Hamirpur, H.P., digging the same or changing its nature in any manner whatsoever. The suit presently is at the stage of hearing arguments. The plaintiff, however, has filed the application as aforesaid with a prayer to appoint the Local Commissioner on the grounds stated therein which, however, is dismissed vide impugned order.

(3.) Having gone through the record and also taking into consideration the rival submissions as well as law applicable, undisputedly, the Court ceased of the matter may order for local investigation for the purpose of elucidation of any point in issue in a suit and to ascertain any other and further factual details by issuing a commission to a person as it thinks fit in the given facts and circumstances, directing him to conduct investigation on the spot and submit the report to the Court. In the case in hand, admittedly at an earlier occasion also, similar application was filed for appointment of Local Commissioner which, however, was dismissed by the trial Court. A petition under Article 227 of the Constitution of India, registered as CMPMO No. 61 of 2012 preferred against the order so passed by the trial Court was also dismissed by this Court vide order dated 28th March, 2012.