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2014 DIGILAW 3435 (ALL)

Hanuman Prasad @ Hanoman v. Rajendra Prasad

2014-11-19

DEVENDRA KUMAR UPADHYAYA

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JUDGMENT Devendra Kumar Upadhyaya,J. Heard learned counsel for the petitioner. 2. By means of this petition filed under Article 226 of the Constitution of India, the petitioner has assailed the validity of the order dated 07.02.2014, passed by the learned trial court, whereby the application moved by the plaintiff-petitioner (46 Ga 2) for issuing Commission under Order 26 Rule 9 of the Code of Civil Procedure has been rejected by the learned trial court giving the reason that it is not clear in the application moved by the plaintiff as to for what purpose the plaintiff seeks to get the Commission issued. It has further been observed by the learned trial court that the application for issuing Commission has been moved after seventeen years from the date of institution of the suit which shows that there has never been a need to issue a Commission for all these seventeen years. The revisional court agreeing with the order passed by the learned trial court has dismissed the revision petition by means of the order dated 06.05.2014, which has also been challenged in this petition. 3. It is settled law that issuing Commission under Order 26 Rule 9 of the CPC is basically the power/jurisdiction vested in the court concerned for the purposes of elucidating any matter of the suit in dispute. The learned trial court has given the finding that the plaintiff has failed to establish as to for what purposes or to ascertain which matter in dispute, he has prayed for issuing the Commission. 4. It is also settled that Order 26 Rule 9 of the CPC vests discretionary jurisdiction to be exercise by the learned court keeping in view the facts and circumstances of the case and also after recording its satisfaction that issuing Commission is a requisite and it is proper for the purposes of elucidating any matter. The plaintiff has utterly failed to establish reason for which he wants to get the Commission issued. I do not find any illegality in the order passed by the learned trial court. 5. The revisional court has also not committed any illegality while dismissing the revision petition preferred by the petitioner. 6. In view of above, the writ petition is hereby dismissed. 7. There will be no order as to costs.