PRAMOD VYAS Vs. RAMADHAR DUBEY

JUDGEMENT

(1.) Heard Mr. Sanjay Singh, learned counsel for the petitioner. The petitioner, in the present application under Article 227 of the Constitution of India, is aggrieved by an order dated 8.8.12 passed by learned Sub-Judge-III, West Champaran at Bettiah in Title Suit No. 11/2011 whereby a petition dated 30.7.2012 filed by respondents 1st set/plaintiff has been allowed. By the said petition dated 30.7.2012 the respondents 1st set/plaintiff sought for appointment of a Pleader Commissioner to ascertain and report the position of the suit property as regards existence of a thatched house and trees etc. over the suit property, surrounded by a barrier.

(2.) It appears from the pleadings in the present application that the plaintiff filed the said Title Suit No. 11/2011 seeking declaration of his right, title and confirmation of possession over the suit land. He also sought for a decree of injunction restraining the petitioner/defendant from interfering with his possession over the suit property. It further appears that the petitioner, after having received notice, appeared before the court below and filed his written statement. The respondents 1st set filed a petition under Order 39, Rule 1(2) of the Code of Civil Procedure ('in short the Code') seeking interim injunction in his favour. The petitioner is said to have filed his show cause reply also to the petition under Order 39, Rule 1. The respondents 1st set filed a petition, in the meanwhile, on 30.7.2012 under Order 26, Rule 9 of the Code for appointment of a Pleader Commissioner to make on the spot inspection of the suit land and to submit the report. A rejoinder to this petition was filed objecting to the move for appointment of a Pleader Commissioner. Learned court below, however, by the impugned order dated 8.8.2012 allowed the petition holding that appointment of Pleader Commissioner, in the facts and circumstances of the case, would not prejudice the case of the petitioner. The court below also came to a finding that such on spot investigation by the Pleader Commissioner would not create evidence in favour of plaintiff as the petition for appointment of Pleader Commissioner was confined to ascertain the position/condition of the suit land.

(3.) Mr. Sanjay Singh, learned counsel for the petitioner, has strenuously submitted that even before commencement of trial and during the pendency of the injunction petition, the court below ought not to have allowed the petition under Order 26 Rule 9 of the Code and appointed a Pleader Commissioner for on the spot inspection. He submits that appointment of Pleader Commissioner, in the facts and circumstances of the case, is totally unwarranted as such appointment would amount to providing to the plaintiff an opportunity to collect evidence through Pleader Commissioner. He submits that a party is required to prove hit case on the basis of evidence adduced by him and it cannot take help of the evidence collected in course of local inspection conducted by the Pleader Commissioner. He has placed reliance upon a judgment of Madras High Court In re P. Mossa Kutty, 1953 AIR(Mad) 717 and Vessel M.B. "Baltic Confidene" vs. State Trading Corporation,2000 AIR(Cal) 91 to submit that object of local inspection is not to collect evidence which can be taken in court but to obtain evidence which from its very peculiar nature can only be had on the spot.