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2015 DIGILAW 2208 (ALL)

Hari Shankar Verma v. State of U. P.

2015-07-31

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta, J. The petitioner, aggrieved by an order dated 9.4.2015 rejecting his application 24 Ga (2) for getting the property surveyed by a survey commissioner, has approached this Court invoking its supervisory power under Article 227 of the Constitution. 2. The petitioner had instituted Original Suit No.1234 of 2001against the second respondent for permanent prohibitory injunction. The suit was dismissed by the Civil Judge (Junior Division), Kanpur Nagar by judgment dated 8.12.2009. While deciding issues no.1 and 2 as to whether the plaintiff is owner of the suit property or not, the trial court held that the plaintiff-petitioner failed to prove that the suit property is part of Gata No.1103 and 964, which he claims to be his own. It has been noted in the judgment that the petitioner made an application for getting the suit property surveyed by a commissioner but despite such application being allowed, he did not take steps for getting the survey commission issued. Consequently, adverse inference has been drawn against the petitioner. 3. Aggrieved by the judgment of the trial court, the petitioner preferred Civil Appeal No.164 of 2014. During the pendency of the appeal, the petitioner moved an application 24 Ga (2) praying the appellate court for getting the suit property surveyed by a survey commissioner. The application has been rejected by the appellate court with the finding that similar application Paper No.15 Ga moved before the trial court was allowed by it and thus, there is no justification for allowing the instant application. Aggrieved thereby, the petitioner has approached this Court. 4. In paragraph 10 of the petition, a specific assertion has been made by the petitioner to the effect that after the order of the trial court allowing the application for the survey commissioner, the petitioner deposited the requisite cost. A counter affidavit has been filed on behalf of the Kanpur Development Authority and wherein, paragraph 10 of the petition has not been denied. All that has been stated is that the assertions made are matter of record. 5. A counter affidavit has been filed on behalf of the Kanpur Development Authority and wherein, paragraph 10 of the petition has not been denied. All that has been stated is that the assertions made are matter of record. 5. Learned counsel for the petitioner, therefore, urged that the petitioner had duly deposited the cost for issuance of the survey commissioner before the trial court but despite that, the survey commissioner had not inspected the site, nor submitted any report and in such view of the matter, the petitioner was justified in moving the application before the appellate court for getting the suit property surveyed. He has also referred to the provisions of Order 41 Rule 7 C.P.C. in submitting that the appellate court had ample power to allow such application. 6. A perusal of the impugned order reveals that the application for issuance of the survey commissioner has been rejected on the sole ground that similar application Paper No.15 Ga filed before the trial court had been allowed by it, consequently, there is no justification for accepting the application with similar request. 7. The lower appellate court had lost sight of the fact that in the impugned judgment, the trial court has noted that the survey commissioner has not inspected the site, nor there is any report of the survey commissioner on record. As regards the finding recorded in the judgment of the trial court that the petitioner had not taken steps and for which reason, the survey commissioner had not surveyed the property, the same has been specifically challenged by the petitioner before this Court, as noted above. The assertions made in paragraph 10 of the petition that the petitioner had duly deposited the cost for issuance of survey commissioner, has not been denied in paragraph 19 of the counter affidavit. In such view of the matter, this Court is of the opinion that the impugned order passed by the appellate court rejecting the application 24 Ga (2) is a result of non-application of mind. 8. Learned counsel appearing on behalf of the second respondent submited that instead of remitting the matter back to the lower appellate court for reconsideration of the application Paper No.24 Ga (2), this Court may direct issuance of a survey commissioner, provided the appellant agrees that he would not delay the proceedings before the appellate court. 9. 8. Learned counsel appearing on behalf of the second respondent submited that instead of remitting the matter back to the lower appellate court for reconsideration of the application Paper No.24 Ga (2), this Court may direct issuance of a survey commissioner, provided the appellant agrees that he would not delay the proceedings before the appellate court. 9. In such view of the matter, the impugned order dated 9.4.2015 passed by Additional District Judge, Court no.23, Kanpur Nagar is set aside. The application Paper No.24 Ga (2) stands allowed. The lower appellate court is directed to issue a survey commissioner for survey of the suit property. The petitioner shall deposit the requisite cost within one week from today before the lower appellate court. The petitioner further undertakes that no further evidence shall be led by him after the report of the survey commissioner comes on record and that the petitioner would argue the appeal finally without seeking unnecessary adjournments. The petitioner shall also file a certified copy of the order passed by this Court before the lower appellate court within one week from today. With these observations and directions, the petition stands allowed to the extent indicated above.