HARI RAM SAINI Vs. VIMLA DEVI & ORS

JUDGEMENT

(1.) The petitioners are aggrieved by the order dated 11.12.2013 passed by the Addl. District Judge, Kotputli, District Jaipur, whereby the learned Judge has dismissed an application filed by the petitioner for appointment of a Commissioner regarding inspection of the property in dispute.

(2.) The brief facts of the case are that respondent-plaintiffs filed a suit for eviction and arrears of rent before the learned Judge against the petitioner-defendant. The petitioner-defendant filed his written statement. The learned trial court framed the issues and after recording the evidence, by judgment and decree dated 24.9.2009, decreed the suit of plaintiffs on the ground of personal necessity. Being aggrieved by the judgment and decree dated 24.9.2009, the petitioner-defendant filed an appeal before the learned Judge. In the aforesaid appeal, the petitioners-defendants filed an application under Order 41 Rule 27 read with Section 151 CPC, which was decided by the learned trial court by order dated 25.7.2013 stating that the same shall be considered at the time of final hearing of the appeal. During the pendency of the appeal, the defendant-petitioners filed an another application praying for appointment of Commissioner to inspect the property in dispute. By order dated 11.12.2013, the learned Judge dismissed the said application. Hence, this petition before this Court.

(3.) Mr. Ajay Gupta, the learned counsel for the petitioner has vehemently contended that by judgment and decree dated 24.9.2009, the learned trial court had decreed the eviction suit in favour of the respondent-plaintiffs on the ground of their necessity of the shop. However, the respondent-plaintiffs have a large number of properties including shops which are both within Kotputli and outside Kotputli. Moreover, after the said decree, the respondent-plaintiffs have demolished a property lying right next to the property in dispute and have constructed as many as fourteen shops thereupon. Thus, respondent-plaintiffs do not have any bona fide necessity for getting the shop in dispute vacated. The petitioner had filed a suit for appointment of Commissioner so that the properties owned by the respondent-plaintiffs could be inspected and the real facts of the case could be brought out before the Appellate Court. Secondly, the learned Judge has dismissed the application without assigning any cogent reasons. Thirdly, even at the stage of second appeal, a Commissioner can be appointed if the court so deems necessary. Therefore, as the first appeal is pending before the learned Judge, he had ample powers to appoint a Commissioner. However, he has failed to do so. Therefore, the impugned order deserves to be interfered with.