DEV RAJ Vs. NAGAR MAL AND ANOTHER

JUDGEMENT

(1.) Held: Admittedly, during the pendency of the suit, application came to be filed for appointment of Commissioner, which came to be dismissed on the ground that applicant wants to determine whether defendant No.2 is in possession of land falling under Kh.No.96 or under Kh.No.95 by appointment of Commissioner, this will amount to collection of evidence which is not the object of provision of law. Moreover, this fact can be cleared or proved by leading evidence during trial. (Para 7).

(2.) It is beaten law of the land that writ petition is a remedy in public law which can be filed by any person but the main respondent should either be Govt. Agency or a State or its instrumentalities within the meaning of Article 10. Private persons cannot be said to be the State or instrumentalities of the State and all the respondents in the writ petition cannot be private parties. Under Article 226, High Court can issue writ against any person but the persons must have some statutory or public function to perform. It is apt to reproduce Para 64 of the judgmentherein:- "64. It is well settled that a writ petition is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. Private individuals cannot be equated with State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with State can be respondents in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform." (Para 14).

(3.) Petitioner has invoked writ jurisdiction of this Court for quashing order dated 10.12.2012 passed by Munsiff, Samba in a case titled Dev Raj v. Nagar Mal and another (hereinafter for short as impugned order) by which application filed by the petitioner for appointment of Commissioner under Order 26 Rule 9 Code of Civil Procedure (for short 'CPC') for identification of land came to be dismissed, on the grounds taken in the memo of petition.