Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1827 (ALL)

MURLIDHAR v. STATE OF U. P.

2010-05-28

KRISHNA MURARI

body2010
JUDGMENT Hon’ble Krishna Murari, J.—Heard Shri I.N. Singh, learned counsel for the petitioner. 2. Undisputed facts giving rise to the dispute are as under. 3. Plaintiff-petitioners filed suit seeking a decree of permanent injunction to restrain the defendant-respondents from interfering in their possession over the suit property and not to dispossess them by force or to change its nature. An Amin Commissioner was appointed by the trial Court to make inspection of the property, who submitted a report that it was the plaintiff-petitioners who were in cultivatory possession of the suit property and paddy crops were standing on the land in dispute. The report was confirmed by the trial Court subject to evidence vide order dated 20.9.2006. Four witnesses were examined on behalf of plaintiff-petitioners. At the stage of evidence of the defendants, after cross-examination of D.W. 1, who stated that land in dispute is in the nature of ‘talab’ and there are no crops standing, an application was filed by the plaintiff-petitioners under Order XVIII Rule 18 C.P.C. with a prayer that Court may make spot inspection so that the evidence being recorded in the case may be properly appreciated. Trial Court vide order dated 26.4.2010 dismissed the application against which the plaintiff-petitioners filed a revision which has also been dismissed. 4. It is contended by the learned counsel for the petitioners that jurisdiction conferred upon the Court to make spot inspection by Order XVIII Rule 18 C.P.C. has wrongly and illegally been refused to be exercised. It has further been submitted that incorrect statement was being made by D.W. 1 and in order to ascertain the true and correct fact and to appreciate the evidence on record, the trial Court ought to have conducted the spot inspection. It has next been submitted that merely because there was already an Amin Commissioner’s report on record, did not divest the Court of its power to carry out the spot inspection himself and the existence of the Amin’s report cannot constitute a basis for rejecting the application. 5. I have considered the argument advanced by the learned counsel for the petitioner and perused the record. 6. Both the Courts below have rejected the application mainly on the ground that spot inspection by the Court is not required to be made in order to test the correctness and veracity of the statement of a witness. 7. 5. I have considered the argument advanced by the learned counsel for the petitioner and perused the record. 6. Both the Courts below have rejected the application mainly on the ground that spot inspection by the Court is not required to be made in order to test the correctness and veracity of the statement of a witness. 7. Order XVIII Rule 18 C.P.C. reads as under. “R. 18. Power of Court to inspect.—The Court may at any stage of a suit inspect any property or thing concerning which any question may arise, and where the Court inspects any property or thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed at such inspection and such memorandum shall form a part of the record of the suit.” 8. A bare reading of the aforesaid provision goes to show that the power has been vested in the Court to make inspection, if it deems fit. The said power can be exercised by the Court suo motu or even at the request made by the parties to a lis. The language does not suggest that parties can claim spot inspection by the Court as a matter of right. The Court is not bound under Order XVIII Rule 18 C.P.C. to make a local inspection even if both the parties request for the same, if it considers that such an inspection is not necessary. On the other hand, an inspection can be made by the Court even if neither of the parties request, if it thinks necessary to do so in the interest of justice. The provision has not been enacted in order to test the veracity or the correctness of the evidence adduced in the case or believing some witnesses as against others, when the two sets speak about state of facts in a contradictory fashion. 9. The use of words “at any stage of a suit” in Order XVIII Rule 18 C.P.C. further goes to show that the local inspection can be made at any stage, namely, before the evidence has begun to be recorded or in the course of recording of the evidence or after the evidence is concluded and before the argument are heard and judgment is delivered. It is obvious that there must be some purpose for the Courts making such inspections, but by no stretch of imagination, the provisions can be said to have been enacted by the legislature for appreciating or believing the statement of a witness as against others. 10. In the case in hand, what the plaintiff-petitioners actually wanted, was a spot inspection by the Court in order to ascertain the veracity and correctness of the testimony of D.W. 1, who stated in the cross-examination that land in dispute was in the nature of pond and there was no crops standing thereon. This is not permissible in exercise of powers conferred by Order XVIII Rule 18 C.P.C., and hence, the Courts below do not appear to have committed any illegality in rejecting the application filed by the plaintiff-petitioners. 11. The impugned orders, thus, do not warrant any interference by this Court. The writ petition, accordingly, fails and stands dismissed in limine. —————