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2016 DIGILAW 2055 (ALL)

Faiz Qadir v. Shahjahan Khanam

2016-05-26

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Anirudh Sharma for the petitioners and Sri J.J. Munir for the respondents. 2. The petition has been filed for setting aside the order dated 9.3.2016 by which revision of the defendants has been allowed and the order of trial court dated 4.9.2014 issuing commission for spot inspection has been set aside. 3. The suit was filed in the year 2002 for cancellation of lease deed dated 17.6.1972 executed by Wazid Khan in favour of defendant-1 and for permanent injunction restraining defendants from interfering in their possessions over the land in dispute. The plaint was later on amended. It was stated that defendants have raised construction during summer vacation and relief was also amended and the relief for demolition of construction and possession was added. It was mentioned that prior to amendment commission was issued for spot inspection and the commissioner has submitted his report when there was no construction over the disputed land and disputed land was lying vacant. The said commissioner report has been confirmed subject to evidence of the parties. When the case was ripen up for final argument, at this stage the defendants moved an application for obtaining a fresh report of the commissioner regarding spot inspection. The reason in this application was that DW-1 in his statement has stated that one room was constructed over the property in dispute. The trial court by order dated 18.9.2014 issued commission for spot inspection. The plaintiffs filed an application for recall of the aforesaid order, which was rejected by the trial court by order dated 18.12.2014. The plaintiffs thereafter filed a revision i.e. Civil Revision No.91 of 2014 against the order dated 4.9.2014, which has been allowed by the revisional court by the impugned order 9.3.2016. Hence, this petition has been filed. 4. I have considered the arguments of the counsel for the petitioners. 5. The counsel for the petitioners argued that although the plaintiffs filed an application for recalling the order dated 4.9.2014 that application was rejected on 18.9.2014 but the revision was not filed against the order dated 18.9.2014. As the revision was filed against the order dated 4.9.2015, it was not competent. The arguments in this respect are misconceived. The order dated 4.9.2014 was challenged in recall application and was challenged in revision also. As the revision was filed against the order dated 4.9.2015, it was not competent. The arguments in this respect are misconceived. The order dated 4.9.2014 was challenged in recall application and was challenged in revision also. The order of rejection of recall application is not a substantial order, which was liable to be challenged. Order dated 4.9.2014 is a substantial order, which was challenged in the revision. 6. So far as the arguments that under Order 26, Rule 9 , CPC if the trial court is not satisfied with the report of the commissioner then it can obtain the report afresh is concerned, although it is well within the jurisdiction of the trial court to obtain a fresh commissioner report under Order 26, Rule 10 (3), CPC. The order of the trial court was within jurisdiction and there was no jurisdictional error. The revision has been illegally allowed without consideration this fact. 7. I have considered the arguments of the counsel for the petitioners. 8. The trial court while directing for fresh commission report has not recorded dissatisfaction regarding earlier commissioner report, therefore, issuing fresh commissioner report has not been according to the provision of Order 26, Rule 10 (3), CPC. 9. The reason for issuing fresh commission to obtain report in respect of construction on the spot, which had already been admitted by the plaintiffs in paragraph 14A of the plaint. Therefore, revision has been allowed. The impugned order does not suffer from any illegality. No interference is required by this Court. 10. However, the trial court shall proceed to decide the suit on merit after hearing the parties expeditiously, without granting unnecessary adjournments to either of the parties. 11. With the aforesaid observation the petition is disposed of. Petition disposed of.