Orissa High Court
Madhu Sudan Pradhan And Ors. vs Santosh Kumar Das on 20 November, 2003
Equivalent citations: AIR2004ORI86, AIR 2004 ORISSA 86, (2004) 1 CLR 103 (ORI)
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Defect No. 25 is Ignored.
2. Heard.
3. This writ petition is as against the order passed on 23-1-2002 by the Civil Judge (Sr. Division), Nayagarh in rejecting the application filed by the plaintiffs/petitioners for deputing a Survey Knowing Commissioner to find out as to who is in possession of the suit premises and whether any development has been undertaken in the suit premises, i.e. the residential premises. The suit, i.e., Title Suit No. 51 of 1993 is for specific performance of contract on the basis of agreement for sale, said by plaintiffs to have been validly executed by the sole defendant/opposite party on receipt of part consideration amount and giving delivery of possession. It is also admitted that in the suit plaintiffs have sought for a direction to the defendant to receive balance consideration amount and to execute the sale deed and in the alternative to grant compensation amount Rs. 80,000/- (eighty thousand) for the loss and damages which he has suffered by spending Rs. 20,000/- (twenty thousand) towards the improvement and losing opportunity of getting another available plot/house because of the alleged contract with the defendant. It is stated at the Bar that defendant in his written statement while admitting about executing that document has advanced the pleas that it was a sham and nominal document and that was never acted upon. He has also denied to the contention of the plaintiffs relating to delivery of possession and improvement, as pleaded in the plaint.
4. Trial Court being abreast of the aforesaid pleadings and the issues involved, rejected the application filed by the plaintiffs on the ground that allowing the prayer for deputing a Commissioner for the required purpose would amount to facilitating the plaintiffs to collect evidence through Court. Learned Civil Judge has also recorded that in the meantime plaintiffs have already examined eleven witnesses, out of whom P.W. No. 10 is a private Amin.
5. Learned counsel for the petitioners argues that unless a Survey Knowing Commissioner is deputed, the actual state of affair relating to the occupation and improvement cannot be ascertained by the Court on the basis of available evidence and, therefore, a Survey Knowing Commissioner be deputed. The aforesaid argument is heard to be rejected in as much as it has been rightly commented by the Court below that it would amount to collecting evidence on behalf of the petitioners. When the relevant issue is as to whether the agreement for sale is valid or sham and nominal, evidence in proof and against that issue can be tendered by the parties. Plaintiffs, if want to adduce evidence relating to the claim of delivery of possession of the suit land, what was its condition on the date of such delivery of possession whether there has been any improvement made of the suit house, who has made the same and, if so, what is the amount spent, what damage has been sustained etc., then he may place relevant evidence before the trial Court. Any of such matter, as it now appears, does not require local investigation by a Survey Knowing Commissioner. The evidence, which petitioners want to produce before the Commissioner for the purpose of that investigation, may be produced by them before the trial Court. A Survey Knowing Commissioner need not be deputed to ascertain and report as to who is in possession and whether he has effected improvement of that property.
6. This Court thus finds no illegality in the impugned order so as to interfere with the same under Article 226 or 227 of the Constitution of India.
7. Accordingly the writ petition is dismissed.