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2015 DIGILAW 1240 (RAJ)

Vijay Singh v. Kiran

2015-07-04

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition under Article 227 of the Constitution of India has been filed by the petitioner aggrieved against the orders dated 1.5.2012 (Annex.-6), 14.5.2012 (Annex.-8) and 27.2.2015 (Annex.-13), whereby the trial court has appointed local Commissioner, application seeking recall of the order has been rejected by the trial court and review petition filed by the petitioner qua the original order have been dismissed by the trial court respectively. 2. The respondent-plaintiff filed a suit for permanent injunction against the petitioner-defendant. When the application seeking temporary injunction, which was filed along with suit came up before the trial court, the trial court by its order dated 1.5.2012 (Annex.-6) opined that calling of Commissioner's report was justified and appointed one Jagdish Bishnoi, Advocate as Commissioner. The petitioner filed application on 10.5.2012, inter-alia, indicating that against the order dated 1.5.2012, the petitioner has filed review application and next date fixed in the matter was 14.5.2012, as the Commissioner Jagdish Bishnoi has not informed the petitioner nor the report has been produced before the Court, the applicant has apprehension that he may be discriminated against and prayed that some Senior Advocate be appointed Commissioner. 3. The application was taken up by the Court on 14.5.2012 and after hearing the parties, the trial court came to the conclusion that no reason has been indicated to show that the petitioner may be discriminated against and consequently dismissed the application. 4. The review petition filed by the petitioner was taken up by the trial court and by order dated 27.2.2015, the same was rejected holding that Commissioner can be appointed suo motu by the Court and the provisions of Section 151 CPC cannot be used in contravention of express provision. 5. It is submitted by learned counsel for the petitioner that the trial court committed error in appointing Commissioner and dismissing the application and review petition filed by the petitioner. 6. It is submitted that the Commissioner was appointed suo motu by the Court without any application by any of the parties, which is not permissible in law. Further despite application of the petitioner that he had apprehension of discrimination / prejudice qua Commissioner Jagdish Bishnoi, the Court did not appoint another Commissioner and thereafter, the review petition also has been dismissed, which is contrary to law and therefore, the orders impugned cannot be sustained. 7. Further despite application of the petitioner that he had apprehension of discrimination / prejudice qua Commissioner Jagdish Bishnoi, the Court did not appoint another Commissioner and thereafter, the review petition also has been dismissed, which is contrary to law and therefore, the orders impugned cannot be sustained. 7. I have considered the submissions made by learned counsel for the petitioner and have perused the material placed on record. 8. The foundational objection raised by the petitioner regarding lack of power of the Court to appoint Commissioner suo motu, a bare look of the provisions of Order 26, Rule 9 CPC, it is apparent that in a case where the Court deems a local inspection to be requisite or proper, Commissioner can be appointed. 9. So far as plea raised by learned counsel for the petitioner that as the Commissioner has been appointed while hearing the application under Order 39, Rule 1 and 2 CPC and under the provisions of Order 39, Rule 7 CPC only on an application, a Commissioner can be appointed, suffice it to indicate that the power to appoint Commissioner has not been exercised by the trial court by indicating provision of Order 39, Rule 7 CPC or any other provision and therefore, it cannot be said that the appointment has been made under Order 39, Rule 7 CPC. Further the application was filed by the petitioner, inter alia, indicating apprehension about the local Commissioner only on account of the fact that the notice was not given to the petitioner by him and that report was not filed. It would be relevant to notice that the order appointing the Commissioner was passed in the presence of counsel for the parties and therefore, it cannot be said that in absence of any notice, the petitioner can harbour any apprehension. 10. In view of the above, the trial court was justified in rejecting the application seeking recall of the order. Further the review petition was also rightly rejected by the trial court as in view of the order discussed herein-above, there was no substance in the review petition. 11. In view of the above discussion, there is no substance in the writ petition, the same is, therefore, dismissed. Petition Dismissed.