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2015 DIGILAW 1785 (HP)

Mast Ram v. Nand Lal

2015-12-04

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. This petition under Article 227 of the Constitution of India is directed against the order dated 9.7.2015 passed by learned Civil Judge (Junior Division), Chachiot at Gohar, District Mandi in Civil Suit No. 21 of 2010 whereby he appointed the Local Commissioner for demarcation of the suit land, that too, after the parties had led their evidence. 2. The respondent despite service has not chosen to put in appearance. 3. The respondent had filed a suit for possession and consequential relief of injunction and when the same was at the stage of arguments, he filed an application for appointment of Local Commissioner to demarcate the land. It would be evident from the record that a demarcation had earlier been carried out, that too, on the application of the respondent and report to this effect has already been exhibited as Ex.PW-2/A. 4. The learned trial Court allowed the application by concluding that the suit land is imminent to the land of the applicant/plaintiff, so applicant/plaintiff is justified in filing the present application at this stage. As per the record, applicant/plaintiff is coming in dispute qua suit land with respondent/defendant since the year 2006 and evidence on record is not sufficient to give a true picture of the spot. Since the motion made by applicant/plaintiff is bona-fide one and circumstances of the case are just defined in the application filed by applicant. In view of this, this Court is of the considered opinion that appointment of Local Commissioner for the demarcation of the suit land is necessary for the ends of justice. So far as plea of the respondent/defendant that appointment of the Local Commissioner in this case at this stage will amount collection of evidence in favour of applicant/plaintiff is concerned to this effect, it is stated here that this plea is not sustainable as no prejudice shall be caused to the respondent/defendant. In case Local Commissioner is appointed in this case for the demarcation of the suit land and moreover, respondent/ defendant will have sufficient opportunity to rebut the demarcation report by cross-examining the Local Commissioner in this case. 5. In case Local Commissioner is appointed in this case for the demarcation of the suit land and moreover, respondent/ defendant will have sufficient opportunity to rebut the demarcation report by cross-examining the Local Commissioner in this case. 5. In so far as the earlier demarcation report is concerned, the learned trial Court held that in the demarcation report Ex.PW2/B, applicant/plaintiff has been found owner in possession of the suit land comprised in Khasra No. 374/1, area measuring 0-4-11 bigha as per revenue record. But as per contents of the application as well as plaint of the applicant/plaintiff, respondent/defendant has caused interference on the suit land from dated 11.2.2010 by cutting grass and cultivating the same and this fact has also been admitted in evidence by respondent/defendant in his cross examination but he has explained his admission by deposing that he plaughed his own field. There is no evidence in support of the version of the respondent/defendant that he has not encroached the portion of the suit land comprised in Khasra No. 374/1, area measuring 0-4-11 bigha. 6. I am afraid that I cannot concur with the reasoning assigned by the learned trial Court. The object of local investigation is not to collect evidence, but to obtain such material, which from its peculiar nature, can be had only at the spot. The object of Order 26 Rule 9 is not to assist a party to collect evidence. The Courts are not expected to mechanically order the appointment of Commissioner, liberally on the requests made without proper and due application of its mind, to the conditions stipulated in the relevant provisions of law, to be adhered to, before embarking upon passing orders for appointing the Local Commissioner. 7. Mechanical and indiscriminate appointment of Local Commissioner, that too, merely because the Court thinks the other party to the proceedings may not be prejudiced or that the expenses for the commissions are going to be borne by the applicant for the purpose cannot be countenanced. 7. Mechanical and indiscriminate appointment of Local Commissioner, that too, merely because the Court thinks the other party to the proceedings may not be prejudiced or that the expenses for the commissions are going to be borne by the applicant for the purpose cannot be countenanced. No doubt, it is the Court concerned where the issue is pending, which alone is the best judge to decide the need or necessity to appoint a Commission, but then the Court must record its satisfaction to such a request bearing in mind the interest of justice of both the parties and the stage of the suit and that too within the frame work of its powers as conferred by the Code and this essentially would depend upon the facts and circumstances of each case. 8. It would be evident from the perusal of the application moved by the plaintiff that he was seeking appointment of a Local Commissioner on the ground that the respondent had taken objection regarding the spot memo prepared by the Tehsildar having not been supplied to the respondent. Indisputably, it is the report of the Tehsildar Ex.PW-2/A, which is sought to be relied upon by the plaintiff/petitioner for which he has already led evidence and after conclusion of the same even the defendant/respondent have led the evidence and it is only thereafter that the application for demarcation has been preferred. In such circumstances, the respondent was perfectly justified in submitting that the appointment of Local Commissioner at this stage would only amount to collect the evidence on behalf of the applicant and rewarding the party for the negligence or inaction to prove the facts alleged in the plaint. 9. It is evident from the record that the petitioner had earlier got the demarcation carried out through the revenue officials on 8.3.2007 and had thereafter lodged an FIR against the respondent and his family members and during the course of investigation by the police the demarcation was again conducted on 21.6.2007 through the revenue officials and the spot map was also prepared. Thus, it is clear that the petitioner himself was relying upon these two demarcation reports and was therefore required to prove the same in accordance with law and not fall back on the Court to seek its aid or assistance to gather or collect evidence for him and fill up the lacunas of his case. 10. Thus, it is clear that the petitioner himself was relying upon these two demarcation reports and was therefore required to prove the same in accordance with law and not fall back on the Court to seek its aid or assistance to gather or collect evidence for him and fill up the lacunas of his case. 10. The power of appointment of Commissioner cannot be exercised by the Court to assist the party to collect the evidence where it can get evidence itself. It is settled law that the 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. 11. In view of the aforesaid discussion, the order passed by the learned trial Court dated 9.7.2015 is not at all sustainable and the same is accordingly quashed and set-aside, leaving the parties to bear their costs. Interim order granted by this Court on 6.8.2015 is vacated. With the aforesaid observations, the petition stands disposed of, so also the pending applications, if any.