This petition is directed against the order dated 16.3.2010 passed below Exhibit 73 by the learned Judge, City Civil Court in Civil Suit No. 3268 of 1996.
The petitioners herein are the original defendant Nos. 2 to 4 whereas present respondent No.1 is the plaintiff who has filed said suit for specific performance of an Agreement to Sell allegedly entered into between him and the present respondent No. 2.
During the proceedings of said suit, the present petitioners submitted application (Exhibit 73) seeking appointment of Court Commissioner. The said request has been rejected by the learned Trial Court by aforesaid order dated 16.3.2010. Aggrieved by the said order the petitioners- original defendant Nos. 2 to 4 have preferred present petition.
Mr.
Pandya, learned advocate has appeared for the petitioners. I have heard the learned Counsel for the petitioners and perused the record.
Mr.
Pandya, learned advocate for the petitioners has submitted that there are allegation and counter allegation in respect of the suit property between the petitioners and the original plaintiff i.e. present respondent No.1, and that therefore, appointment of Court Commissioner under provision of Order 26 Rule 9 is necessary for the purpose of inspection. He has also submitted that if the request is not granted, it would affect interest of the petitioners. He also submitted that the petitioners are in possession of the suit property since last 40 years and now the petitioners have started making claim in respect of suit property on the basis of alleged Agreement to Sell purportedly entered into between him and the respondent. It was in this backdrop that the petitioners made application seeking appointment of Court Commissioner, however the learned Court has rejected the application for the reasons recorded in the order particularly paragraph 7 of the order. He submitted that the order suffers from an error of non application of mind and the same is contrary to settled legal position. The learned advocate also relied upon the judgment of the Hon'ble Apex Court in case between Haryana Waqf Board vs. Shati Sarup (2008 (8) SCC 671).
One of the facts which has emerged from the record and submission of the learned Counsel is that the applicant had submitted application for interim relief. The said application has already been rejected by the learned Trial Court. In the said application for interim relief the plaintiff had prayed for interim relief for specific performance and the interim relief has been rejected against the plaintiff i.e. present respondent No.1.
Another relevant and important fact which deserves to be noted is that even the petitioners have preferred an application seeking interim relief and the said application is pending for hearing and decision.
It appears that during the pendency of the said interim relief application presented by the petitioners, the petitioners submitted application Exhibit 73 seeking appointment of Court Commissioner.
From the tenure of the application and in light of the fact that petitioner's application for interim relief is pending, it becomes apparent that the petitioners are trying to gather evidence with the aid of Court Commissioner to support and strengthen the application for interim relief instead of going through the proper and regular procedure or leading evidence and cross examination of the witnesses of the other side, the petitioners want to short-circuit the procedure and for the purpose of calling specific evidence on record, appointment for Court Commissioner is requested for.
In the facts of the case, the judgment of the Hon'ble Apex Court which involves altogether facts different from the facts of the present case, do not help the petitioners. In the said case what was sought for is demarcation of the disputed land and the purpose was not of collecting evidence whereas in the present case the facts are altogether different. Furthermore, if during the precess of cross-examination of the witnesses or after the oral evidence including cross-examination of the witness of other side, if any need for Court Commissioner is established and foundation for such need is duly laid during evidence, then such application may be justified and any of the parties may make request for Court Commissioner for local inspection however, at this stage any case for appointment of Court Commissioner is not made out.
The learned Trial Court has rightly and justifiably rejected the application. The interlocutory order does not call for any intervention in petition under Article 227 of the Constitution of India.
Hence, the petition is rejected.
(K.M.THAKER,J.) Suresh* Top