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2014 DIGILAW 268 (HP)

Trilok Singh v. Nardeep Singh

2014-03-26

TARLOK SINGH CHAUHAN

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Judgment Tarlok Singh Chauhan, J. The present petition under Article 227 of the Constitution of India has been preferred by the petitioner (plaintiff) against the order dated 19.10.2013 passed by the learned Civil Judge (Senior Division), Nadaun, District Hamirpur, in CMA No.263/2013 in Civil Suit No. 153/2006, whereby the application filed by the petitioner under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure for appointment of a revenue expert as a Local Commissioner has been dismissed. The petitioner has prayed to quash and set aside the impugned order dated 19.10.2013 and allow the application under Order 26 Rule 9 read with Section 151 CPC. 2. It is alleged by the petitioner that he had filed an application for appointment of Local Commissioner on the ground that he had obtained an information under the Right to Information Act, which disclosed that the respondent (defendant) had four poultry farms located at different khasra numbers, but there was no such entry in the revenue record. In order to know in which khasra number poultry farms of the respondent are located, it was claimed that the appointment of the Local Commissioner as a revenue expert was must in order to reach at the right conclusion to find out the manner and extent and to know on what khasra numbers the poultry farms are situate. 3. The respondent contested the application by taking preliminary objection with regard to maintainability of the application. On merits, it was contended that the plaintiff had already filed an application under Order 26 Rule 9 CPC on 22.03.2011 and the revenue expert was appointed as a Local Commissioner, who demarcated the suit land and gave a detailed report. Now the petitioner had come up with a new false story just to mislead the Court. It was also contended that the report of the Local Commissioner was already on record and the present petition had been filed to mislead the Court. 4. I have heard the learned counsel for the parties and gone through the records of the case. It is relevant to note here that the suit of the petitioner is to the effect that poultry farm of the respondent situate over Khasra No.783 is causing nuisance. It is nowhere the case of the petitioner that the four poultry farms of the respondent situate over different khasra numbers are causing nuisance. It is relevant to note here that the suit of the petitioner is to the effect that poultry farm of the respondent situate over Khasra No.783 is causing nuisance. It is nowhere the case of the petitioner that the four poultry farms of the respondent situate over different khasra numbers are causing nuisance. Therefore, I fail to understand as to how and in what manner this application for appointment of the Local Commissioner has been preferred regarding a matter which is not in issue in the suit. Once a Local Commissioner had already been appointed by the trial Court, I see no reason why Local Commissioner for the second time should be appointed. Infact, the evidence has already been led by the parties and the case was at the stage of arguments when this application was moved. This clearly shows that the application was not bonafide and had been filed with the purpose of delaying the outcome of the suit. 5. It is settled law that the issuance of commission for local investigation is the discretion of the court. In Brij Mohan Sood versus Parshotam Singh and others in RSA No.461 of 2001, decided on 24.03.2014, this Court held that:- “I myself considered the application and therefore, proceed to decide the same. It is settled law that issuance of commission for local investigation is the discretion of the Court and no party can claim such relief as a right, nor the Court is bound to issue a commission. While considering the prayer for appointment of commission, the Court is obliged to apply its mind to the facts and circumstances of the case on hand and take an appropriate decision granting or refusing the relief. There should be sufficient basis and justification as also need and necessity for appointment of commission. It is settled law that the Court cannot be used as a means to collect evidence for a party to achieve an ulterior object.” 6. In view of the settled position of law, I find no infirmity with the order passed by the learned trial Court. Accordingly, the present petition is dismissed along with all pending applications, if any, leaving the parties to bear their own costs.