UNION OF INDIA Vs. KRIPAL INDUSTRIES

JUDGEMENT

(1.) Instant revision impugns the order dated January 17, 1998 of the learned Civil Judge (Junior Division) Raisinghnagar, whereby the application under Order 26, Rule 9, C.P.C., moved by the plaintiff-non-petitioner (for short the plaintiff) was allowed and Commissioner was appointed for making enquiry about the fact of possession of the plot in dispute.

(2.) Brief re'sume' of the facts is that the plaintiff instituted a suit for injunction against the defendant-petitioners (for short the defendants) in the trial Court, seeking relief that the defendants be restrained from transferring plot No. 14 situated in Industrial Area, Raisinghnagar, in their names either by way of lease or by way of a sale deed. It was also prayed that the defendants be restrained from dispossessing the plaintiff from the said plot. Along with the plaint, an application seeking temporary injunction was also filed by the plaintiff. Learned trial Court allowed the application and restrained the defendants from interfering with the possession of the plaintiff and encroaching upon the suit plot. The Additional District Judge, however, allowed the appeal of the defendants preferred under Order 43, Rule 1, C.P.C. and reversed the finding of the trial Court with a direction that original suit be decided within six months. The plaintiff thereafter submitted an application under Order 26, Rule 9, C.P.C. before the trial Court for appointing Commissioner to ascertain as to who was in possession of the suit plot on the relevant date. The application was allowed by the trial Court vide order under challenge.

(3.) Mr. J. P. Joshi, learned counsel for the defendants urged that Commissioner cannot be appointed with an object to create evidence in favour of one of the litigant parties. The question of possession has to be proved by cogent evidence and it cannot be determined on the basis of the inspection report of the Commissioner. Reliance was placed on Basanta Kumar v. Baidya Kumar, AIR 1989 Orissa 118.