LEELA DEVI Vs. KAMLA

JUDGEMENT

(1.) THIS writ petition has been filed under Art. 227 of the Constitution of India against the order dtd. 11.9.2012 in eviction matter filed by the respondent -landlord, namely, case No. 724/2012 -Smt. Kamla vs. Smt. Leela Devi in respect of suit premises, a residential house situated at Deep Marg, behind Kabra School, Paota "A" Road, Jodhpur. By the impugned order, the Rent Tribunal has rejected the application of tenant for appointment of Commissioner under Order 26 Rule 9 C.P.C. on the ground that the said application cannot be allowed for the purpose of collecting evidence on behalf of either of the parties including the defendant -tenant.

(2.) THE learned counsel for the petitioner -defendant -tenant Mr. J. Gehlot relying upon the decision in the case of Shankar Lal vs. Narbada Shankar reported in : 2010(1) DNJ (Raj.) 343 and Tarn Devi vs. Rent Tribunal, Ajmer reported in, 2011(1) DNJ (Raj.) 13 submitted that since in the residential house only the defendant tenant resides, whereas in strip of land attached with the said residential house, another person namely, Smt. Chhoti Devi resided, therefore, in absence of such specification of suit premises for which eviction was sought, the learned Court below ought to have appointed Commissioner to ascertain the actual occupancy of suit premises by the defendant -tenant or Smt. Chhoti Devi, which would have facilitated the clear demarcation of the suit property and would have served the ends of justice. He submitted that this Court has allowed such appointment of Commissioner in the decisions cited supra and it would have served the cause of the plaintiff only, if such Court Commissioner was so appointed.

(3.) HAVING heard the learned counsels, this Court is of the opinion that the learned Court below cannot be faulted in passing the impugned order dtd. 11.09.2012 and rejecting the application of the petitioner -tenant for appointment of Commissioner under Order 26 Rule 9 C.P.C. As to who is in occupation of suit premises in question and strip of land purchased by landlord is not the relevant issue at this stage. The defendant -tenant is of course free to lead evidence in this regard during the course of trial before the learned Rent Tribunal. Whether her relative or even independent person like Smt. Chhoti Devi resides in the back of the house itself or not is not a question to be decided at this stage, nor any such evidence except as led by the defendant or plaintiff is relevant. The appointment of Commissioner is always in the discretion of Court concerned and if the Court is of the opinion that the report of the independent Commissioner can help it in arriving at correct conclusion, it can always do so. Neither any mandamus in this regard can be given by the superior Courts nor such exercise of discretion can be normally interfered with in supervisory jurisdiction under Art. 227 of the Constitution of India.