BADRI NATH Vs. CHAMAN LAL

JUDGEMENT

(1.) THIS is an application in revision against the orders dated August 5, 1977, and September 10, 13 and 17 of 1977, of the Munsiff, Jammu, whereby he has issued directions/instructions to one Mr. Kashi Nath, witness cited by the respondents to go on spot and prepare a site plan of the disputed property before getting his statement recorded and also directing the petitioners not to offer any obstruction to the witness in preparing the said plan.

(2.) IT appears that by an agreement of the parties Shri K.K. Gupta, the then Additional District Judge. Jammu was appointed as arbitrator to resolve the dispute between the parties. He filed the award before the Munsiff Jammu. The respondents filed an application under section 33/30 of the Arbitration Act, challenging the validity of the award. Objections were filed to the application and the court directed the respondents to adduce evidence in respect of the issues raised by it. The respondent cited one Mr. Kashi -Nath SDO as witness. The said witness appeared before the court. The respondent submitted that the witness be asked to go on spot, take measurements and prepare the site plan then his evidence be recorded. The petitioner be also directed to allow access to the witness. The petitioner raised the objection that there was no procedure in the Code which enabled the court to give any such direction. The learned Munsiff, however, passed the order on 5 -8 -1977, which order was supplemented by the other subsequent orders passed on September 10, 13, and 17 of 1977. These orders gave specific directions to the witness as also to the petitioner in this regard.

(3.) LEARNED counsel for the petitioners has submitted that the direction given by the trial court to the witness is not warranted by the procedure. There is no rule in the Code which enable or empowers the court to give any such direction to the witness. The effect of the direction given to the witness is that the court is assuming the role of a party and is helping the cause of the respondents. If the court is of the view that in the interest of justice measurements of the disputed property should be taken in the first instance, and thereafter the witness examined in the light of these measurements of the site plan, then the only course open to the court is to appoint a Commissioner under Order 29 of the Code of Civil Procedure.