RISHI Vs. PYARE RAM ALIAS PYARE LAL

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the order dated 31.8.2017, passed by learned Civil Judge, Manali, District Kullu, H.P., in Civil Suit No.119 of 2017, whereby learned Court below while disposing of an application under Order 26 Rule 9 CPC, having been filed by the respondent (hereinafter referred to as the plaintiff), appointed Local Commissioner to ascertain factum, if any, of fresh construction on the spot in violation of the status quo order dated 11.08.2017, passed by learned Court below, whereby parties were directed to maintain status quo qua nature and possession of the suit land, petitioner ( hereinafter referred to as the defendant) has approached this Court in the instant proceedings filed under Art. 227 of the Constitution of India, praying therein to set-aside the impugned order, referred hereinabove.

(2.) Mr. Ramesh Sharma, learned counsel representing the defendant while referring to the impugned order passed by the learned court below, vehemently argued that same is not sustainable in the eyes of law because before completion of pleadings, learned court below could not order for appointment of Local Commissioner, as it would help creating evidence in favour of particular party. He further stated that the plaintiff being aggrieved, if any, with non- compliance of status quo order, ought to have filed an application under Order 39 Rule 2(a) Civil Procedure Code and in no circumstances, direction, if any, to appoint Local Commissioner under Order 26 Rule 9 Civil Procedure Code could be passed by the Court below. Mr. Sharma, further contended that since during the pendency of the present petition, pursuant to direction issued by the learned court below, police visited the spot and submitted its report to the learned court below, very purpose of moving application under Order 26 Rule 9 Civil Procedure Code has rendered infructuous and as such, impugned order passed by the Court below may be quashed and set-aside.

(3.) To the contrary, learned counsel representing the plaintiff, contended that there is no specific bar, if any, in Civil Procedure Code to file application under Order 26 Rule 9 CPC, praying therein for appointment of Local Commissioner to ascertain the factum with regard to non- compliance of status quo order. He further argued that true it is that the plaintiff could file application under Order 39 Rule 2(a) CPC, but in the case at hand plaintiff with a view to ascertain the factum of non- compliance of the order, moved an application under Order 26 Rule 9 Civil Procedure Code and learned court below made a specific reference to Local Commissioner to visit the spot and as such, there is no illegality and infirmity in the impugned order.