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2011 DIGILAW 2098 (ALL)

Zeenat v. District Judge, Rae Bareli and another

2011-09-08

ANIL KUMAR

body2011
Anil Kumar, J.;- Heard Sri Dilip Pandey, learned counsel for petitioner and Sri S.A. Zamal, learned counsel for respondents. 2. Facts of the present case are that petitioner-plaintiff initially filed a Suit (registered as Regular Suit No. 254 of 2006), dismissed vide judgment and decree dated 31.03.2010 passed by Civil Judge(J.D.), Raebareli. 3. Aggrieved by the same, petitioner filed an appeal (registered as Misc. Appeal No. 32 of 2010) before District Judge, Raebareli/respondent no. 1. During the pendency of the appeal, she moved an application under Order VI Rule 17 for amendment as well as an application under Order XXVI Rule 9 C.P.C. for Commission. 4. By means of impugned order dated 02.11.2010, respondent no.1 allowed the application for amendment, however the application for local inspection/Commission has been rejected. 5. Hence, present writ petition has been filed by the petitioner challenging the order dated 02.11.2010 so far it relates to the rejection of petitioner's application for inspection/Commission moved under Order XXVI Rule 9 C.P.C. 6. Learned counsel for petitioner has assailed the impugned order dated 02.11.2010 on the following grounds : (A) Respondent no. 1 has committed manifest illegality & irregularity in dismissing the petitioner's application moved under Order XXVI Rule 9 C.P.C. for making Commission through impugned order dated 02.11.2010. (B) In changed circumstances/developments, the petitioner has moved an application under Order VI Rule 17 for amendment before the respondent no. 1 alongwith an application under Order XXVI Rule 9 of C.P.C., but the learned respondent no. 1 has on the one hand allowed the petitioner's application under Order VI Rule 17, but on the other hand, has rejected the petitioner's application under Order XXVI Rule 9 for making spot Commission vide its order dated 02.11.2010, which is totally illegal, unjust, improper. (C) After the subsequent development/events, it is necessary to make spot commission in the changed circumstances and as per the provisions appearing Under Order XXVI Rule 9, the petitioner has moved the aforesaid application, but the learned respondent no. 1 has rejected the same in most arbitrary & illegal manner, liable to be set aside. 7. Learned counsel for respondents while defending the order dated 02.11.2010 passed by respondent no. 1 has rejected the same in most arbitrary & illegal manner, liable to be set aside. 7. Learned counsel for respondents while defending the order dated 02.11.2010 passed by respondent no. 1 by which the petitioner's application for issue of Commission has been rejected, submits that the order in question is perfectly valid, needs no interference by this Court while exercising the power of judicial review under Article 226 of the Constitution of India, as the said order is neither perverse in nature nor contrary to the facts on record, rather the respondent no. 1 after taking into consideration that there is sufficient evidence on record, so there is no need to issue Commission, sought by the petitioner only to collect additional evidence in her favour. The said ground does not falls within the ambit and scope of the provisions for issue of Commission under Order XXVI Rule 9 C.P.C., so the present writ petition is liable to be dismissed. 8. I have heard learned counsel for parties and perused the record. 9. From the perusal of the record, it shows that District Judge, Raebareli/respondent no. 1 has dismissed the application for Commission moved under Order XXVI Rule 9 C.P.C. on the ground that appellant without any reasonable justification or reason wanted to collect the evidence in her favour when admittedly all the evidence are on record which are necessary for adjudication of the controversy involved in the matter in question. 10. It is well settled proposition of law that when an application for local inspection is moved in a case, then the court concerned has a discretion to issue the same or not keeping the facts of the case and the evidence led by the parties whether the same is necessary to arrive at a just conclusion either way or where the Court feels that there is some ambiguity in the evidence which can be clarified by making inspection and upto what extent the same is necessary for disposal of the controversy involved in the case. 11. Thus, it is not mandatory on the part of the Court to allow each and every application which is moved for local inspection and the same cannot be claimed as a matter of right by the parties. 11. Thus, it is not mandatory on the part of the Court to allow each and every application which is moved for local inspection and the same cannot be claimed as a matter of right by the parties. Further, while allowing or rejecting the same, the court should also take into consideration the motive and reasons behind moving the same coupled with the factors, e.g. for what purpose it has been moved. 12. In the case of Ranbir Singh Sheoran Vs. VIth Additional District Judge, Muzaffar Nagar and others, 1997(2) JCLR 860 (All), this Court has held as under:- "The local inspection by Court is made only in those cases where on the evidence led by the parties Court is not able to arrive at a just conclusion either way or where the Court feels that there is some ambiguity in the evidence which can be clarified by making inspection. Local inspection by the Court cannot be claimed as of right by any party. Such inspections are made to appreciate the evidence already on record and Court is not expected to visit the site for collecting evidence." 13. In the case of Sonpal Vs. Vth Additional District Judgte, Aligarh and others, 1999(2) Allahabad Rent Cases, 596, this Court has held as under :- "Whether or not a local inspection or commission is necessary for a just decision of case can only be decided after the Court hears the argument and it is for the Court, thereafter, to decide whether to go for local inspection or to issue commission. Instead of addressing arguments, it appears that the petitioner is causing unwarranted delay in disposal of the appeal." 14. In view of the abovesaid facts, as in the instant case, respondent no. 1 after due consideration of the material on record is of the opinion that there is no need for issue Commission as sought by petitioner which is only to collect the additional evidence, rightly rejected the same. 15. Further, the submission made by learned counsel for petitioner that once the application under Order VI Rule 17 C.P.C. was allowed, then there is no justification or reason on the part of respondent no. 15. Further, the submission made by learned counsel for petitioner that once the application under Order VI Rule 17 C.P.C. was allowed, then there is no justification or reason on the part of respondent no. 1 to reject the application under Order XXVI Rule 9 for making spot Commission vide its order dated 02.11.2010, has also got no force because it is well settled principle of law that at the appellate stage, a party cannot seek to lead evidence as per his own convenience and choice but the same shall be governed by the provisions as provided under Order XLI Rule 27. Thus, there is neither any illegality nor infirmity in the impugned order dated 02.11.2010 passed by respondent no. 1. 16. Accordingly, present writ petition lacks merit and is dismissed. 17. No order as to costs.