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2019 DIGILAW 2837 (RAJ)

Jagatpal v. Rajaram

2019-11-14

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - The petitioner has preferred the present writ petition under Article 227 of the Constitution of India, inter alia, challenging the order dated 06.11.2019, passed by the District Judge, Hanumangarh (hereinafter referred to as "the Trial Court)", whereby the Trial Court has issued a commission and directed the Tehsildar, Pilibanga to furnish his report in respect of possession of the disputed land. 2. Challenging the order aforesaid, Mr. Bhaleria, learned counsel for the petitioner submitted that the Court has erred in issuing commission and directing the Tehsildar, Pilibanga to furnish his report in respect of possession of the disputed land. He argued that firstly, the stage of summoning the report has not yet come, as none of the parties have led their evidence and secondly, the Court should not collect evidence for and on behalf of the plaintiff. 3. It was also argued that in exercise of power under Order XXXIX Rule 7 of the Code of Civil Procedure, the Court can appoint Commissioner only pursuant to an application filed by any of the parties in this regard, and not at its own. 4. Learned counsel relied upon the judgment passed by this Court in S.B. Civil Writ Petition No.4652/2013 (Capricorn Life Style Pvt. Ltd. Vs. Sunil Kumar and Anr.) and the judgment passed by the Jaipur Bench of this Court in S.B. Civil Writ Petition No.3563/2007 (Durga Shankar Vs. Board of Revenue for Rajasthan, Ajmer and Ors.). 5. Heard learned counsel for the petitioner. 6. So far as the impugned order dated 06.11.2019 is concerned, may be, that the same has been passed in the proceedings of Temporary Injunction application, but the same cannot be said to have been passed in exercise of powers under Order XXXIX Rule 7 of the Code of Civil Procedure. 7. 5. Heard learned counsel for the petitioner. 6. So far as the impugned order dated 06.11.2019 is concerned, may be, that the same has been passed in the proceedings of Temporary Injunction application, but the same cannot be said to have been passed in exercise of powers under Order XXXIX Rule 7 of the Code of Civil Procedure. 7. The order impugned has been passed by the Trial Court in exercise of its power conferred by the Code of Civil Procedure under Section 75, which reads thus: " Power of court to issue commissions.- Subject to such conditions and limitations as may be prescribed, the court may issue a commission- (a) to examine any person; (b) to make a local investigation; (c) to examine or adjust accounts; or (d) to make a partition; (e) to hold a scientific, technical, or expert investigation; (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit; (g) to perform any ministerial act." 8. A perusal of the Section 75(b) of the Code leaves no room for ambiguity that it is a discretion of the Court to appoint for local inspection and such power is not dependent upon application of any of the parties. 9. So far as the judgments relied upon by the learned counsel for the petitioner are concerned, they deal with the order emanating from an application filed by the concerned party under Order XXVI Rule 9 or Order XXXIX Rule 7 of the Code of Civil Procedure. While dealing with such cases, the Court has held that the Court cannot collect the evidence for any of the parties. 10. As against this, in the present case, the Court has summoned the report of the Tehsildar, Pilibanga for its own satisfaction and, hence, principle enunciated with respect to Order XXVI Rule 9 and Order XXXIX Rule 7 of the Code of Civil Procedure are not applicable. 11. Since, the trial Court, for its own accord has summoned the report of the Tehsildar and exercised the discretion so vested in it under Section 75(c) of the Code of Civil Procedure, this Court does not find it to be a case worth warranting interference under Article 227 of the Constitution of India. 12. 11. Since, the trial Court, for its own accord has summoned the report of the Tehsildar and exercised the discretion so vested in it under Section 75(c) of the Code of Civil Procedure, this Court does not find it to be a case worth warranting interference under Article 227 of the Constitution of India. 12. The order impugned neither suffers from any jurisdictional error nor is there any error apparent, requiring exercise of power under Article 227 of the Constitution of India. No interference is thus warranted as held by Hon'ble the Supreme Court of India in Shalini Shyam Shetty and Ors. Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 and Surya Dev Rai Vs. Ram Chander Rai and Ors., (2003) 6 SCC 675 . 13. The writ petition is dismissed. 14. The Stay Petition also stands dismissed.