Rajasthan High Court - Jaipur
Under Article 226 Of The Constitution Of ... vs . Dinesh Kumar Agarwal And Others. on 6 May, 2014
Author: R.S. Chauhan
Bench: R.S. Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. Civil Writ Petition No. 16976/2013 Deendayal Mor & Anr. v. Addl. District & Sessions Judge No.2, Sikar & Ors. UNDER ARTICLE 226 OF the CONSTITUTION OF INDIA AGAINST THE ORDER DATED 6.8.2013 PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE NO.2 IN CIVIL SUIT NO. 141/2010 TITLED DEEN DAYAL MOR AND ANR. V/S. DINESH KUMAR AGARWAL AND OTHERS. Date of Judgment: 6th May, 2014 HON'BLE MR. JUSTICE R.S. CHAUHAN Mr. Ajeet Bhandari, for the petitioners.
The petitioners-plaintiffs are aggrieved by the order dated 6.8.2013 passed by the Additional District & Sessions Judge No.2, Sikar, whereby the learned Judge has dismissed the petitioner's application under Order 39 Rule 7 read with Order 26 Rule 9 CPC for appointment of a Commissioner.
2. The brief facts of the case are that the petitioners-plaintiffs had filed a suit for declaration and cancellation of sale-deed dated 22.2.2010 along with an application for interim injunction. The petitioner had claimed that the property in dispute is situated at Village Nechwa, Ward No. 2, Tehsil Laxmangarh, District Sikar. The property consists of two parts, firstly a piece of land (E-C-G-H) (measuring 7 feet 4 inches in width and 14 feet 5 inches in length). The said property contains a raised platform which is in ownership and possession of the plaintiff. The said property has been depicted in red colour in the map. Secondly, a strip of land (A-B-C-D-E-F) (measuring 6 feet 10 inches in width) which forms a part of common public area, which is depicted in yellow colour in the map submitted along with the plaint. According to the petitioners, respondent-defendant No.3, Satya Narain, and respondent-defendant No.4, Ajay Mor, transferred the said property in dispute to the respondent No.2-defendant Dinesh Kumar Agarwal by a registered sale-deed dated 22.2.2010. According to the petitioners, the area shown as strip of land marked as A-B-C-D-E-F is part of common public area. Hence, the same could not be sold by Satya Narain and Ajay Mor to Dinesh Kumar Agarwal. Further, the petitioners pleaded that Dinesh Kumar Agarwal, has not only trespassed over the said strip of land, but has also started construction there upon. Hence, the suit for declaration, and cancellation of sale-deed. The respondents-defendants filed their written statement and denied the averments made in the plaint. During the pendency of the proceedings, on 30.10.2010, the petitioners filed an application under Order 39 Rule 7 CPC for appointment of Commissioner. A reply to the said application was also filed. Subsequently, on 1.12.2010, the petitioners again filed an another application under Order 26 Rule 9 CPC for appointment of a Commissioner. However, by order dated 6.8.2013, the learned Judge dismissed both the applications. Hence, this petition before this Court.
3. Mr. Ajeet Bhandari, the learned counsel for the petitioners, has strenuously contended that under Order 26 Rule 9 CPC, the court is required to appoint a Commissioner to make local investigation, especially for the purpose of elucidating any matter in dispute. Since there was a dispute with regard to ownership of the open land in front of the suit property, and with regard to measurement of the road, a Commissioner should have been appointed by the learned Judge. However, notwithstanding the power bestowed upon the court under Order 26 Rule 9 CPC, the learned Judge has declined to exercise his power. Hence, the impugned order deserves to be interfered with.
4. Heard the learned counsel for the petitioners and perused the impugned order.
5. A bare perusal of the impugned order clearly reveals that the learned Judge has noticed the fact that both the parties have submitted photographs of the property in dispute. Moreover, he has rightly held that a Commissioner cannot be appointed for the purpose of creating evidence, which would be in favour of one of the parties to the suit. Since the learned Judge has given cogent and legally valid reasons, this Court does not find any illegality or perversity in the impugned order.
6. For the reasons stated above, the writ petition being devoid of any merit, is hereby dismissed. Stay application also stands dismissed.
(R.S. CHAUHAN),J.
Mak/-
55All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Anil Makawana P.A.