DEVILAL Vs. GOVINDAM

JUDGEMENT

(1.) Both the writ petitions arise out of orders dtd. 8/11/2019, though passed separately, in two different suits being Civil Original Suit No.15/2019 (Devi Lal v. Govindam & Ors.) and Civil Original Suit No.14/2019 (Devi Lal v. Smt. Anju Devi & Ors.) both pending before the learned Civil Judge, Kuchaman City, whereby the applications filed by the petitioners-plaintiffs under Order XXXIX, Rule 7 of C.P.C. seeking appointment of a Commissioner have been rejected. Since, the issue raised in both the suits is common and pertaining to the same area and even the orders impugned in both the cases pertained to the decision upon the same applications and has been decided based upon the same reasoning and logic, both the petitions are being decided together.

(2.) Shorn of unnecessary details, the briefs facts, relevant for adjudication of the present case are that the petitioners-plaintiffs filed both the suits under Sec. 91 C.P.C. in Public Interest stating therein that on the right to way/road from Kuchaman City to Kuchaman, illegal constructions have been raised beyond the permission granted by the Municipal Council and the respondents/ defendants have damaged the right to way. It was thus, asserted that the illegal construction needs to be demolished. Along with the suits, temporary injunction applications under Order XXXIX, Rules 1 & 2 read with Sec. 151 C.P.C. seeking status quo over the right to way by the respondents-defendants were also filed.

(3.) During the pendency of temporary injunction applications, an applications under Order XXXIX Rule 7 of C.P.C. read with Sec. 151 (in both the cases) came to be filed by the petitioners plaintiffs stating therein that for the purpose of determining the encroachment and for measurement of the right to way, it was essential to appoint a Commissioner. The respondents-defendants filed replies to the above-mentioned applications and stated that the right to way was impact and Commissioner cannot be appointed for the purpose of collection of evidence.