RAJKUMAR Vs. NARENDRA KUMAR KANSLIWAL

JUDGEMENT

(1.) BY this writ petition, the petitioner has challenged the order dt. 01.07.2013 passed by the learned Civil Judge (Junior Division), Ladnu (for short 'the trial Court' hereinafter), whereby the application preferred by the respondent -plaintiff under Order 39 Rule 7 C.P.C. for appointing Commissioner has been allowed. The learned counsel for the petitioner -defendant has contended that the Commissioner cannot be appointed by the trial Court for collecting evidence. It is further contended that the petitioner is raising construction on his property only and not encroaching over the property of the plaintiff and, therefore, it was not required by the trial Court to appoint the Commissioner for inspection of the petitioner's property.

(2.) LEARNED counsel for the petitioner, while placing reliance on the decisions of this Court in Parmeshwari Devi (Smt.) vs. Addl. Civil Judge, Bikaner & Ors., reported in, 2008 (3) DNJ (Raj.), 1506 and Prema Ram & Ors. vs. Smt. Narmada Kunwar, reported in, 2012 (3) DNJ (Raj.), 1725, has argued that this Court has categorically held that the Commissioner cannot be appointed for the purpose of collecting the evidence, whereas in this case, the learned Court below has appointed the Commissioner for collecting the evidence in favour of the plaintiff only and, therefore, the learned counsel for the petitioner has prayed for setting aside the order dt. 01.07.2013 passed by the learned trial Court.

(3.) THE learned trial Court, in the order impugned, has given a specific direction to the Court Commissioner that in its report, the Court Commissioner would not indicate any such fact, which goes in favour or against either of the parties, and has specifically directed that the Commissioner would not collect the evidence while preparing the report and only submit the report disclosing the factual position of the property. The proposition of law laid down by this Court in Parmeshwari Devi (Smt.) vs. Addl. Civil Judge, Bikaner & Ors., and Prema Ram & Ors. vs. Smt. Narmada Kunwar (supra) is not in dispute but in view of the specific direction given by the trial Court to the Commissioner for not collecting any evidence in favour or against of either of the parties and for not indicating any such thing in its report, the apprehension of the petitioner seems to be ill -founded. If the Court Commissioner appointed by the trial Court does not abide by the directions of the learned trial Court, it is always open for the petitioner to raise objections regarding the report of the Court Commissioner. In such circumstances, no interference is called for. Hence, the writ petition filed by the petitioner is dismissed.