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2022 DIGILAW 1622 (RAJ)

Mangli Devi W/o Sitaram Saini v. Rajesh Kumar

2022-05-17

ASHOK KUMAR GAUR

body2022
ORDER 1. Heard learned counsel for the parties. 2. The petitioners-defendants have filed S.B. Civil Writ Petition No.9938/2018 challenging the order dated 15.01.2018, whereby, the Court below has appointed Commissioner second time for site inspection. The petitioners filed review application before the Court below challenging the said order dated 15.01.2018 and the Court below, vide order dated 09.02.2021, dismissed the review application and as such, the petitioners have filed S.B. Civil Writ Petition No.7437/2022 challenging the order dated 09.02.2021. 3. With the consent of learned counsel for the parties, both the writ petitions are decided by this common order. 4. Learned counsel for the petitioners-defendants submitted that the plaintiffs have filed suit for cancellation of sale deed, declaration and mandatory injunction. 5. Learned counsel submitted that the petitioners had filed an application before the Court below for appointment of Commissioner to inspect the disputed site and submit site inspection report. 6. Learned counsel for the petitioners submitted that one Advocate was appointed as Commissioner, vide order dated 10.02.2017 and the said Commissioner submitted his site inspection report and same was prepared in presence of both the parties and it was signed by both the parties. 7. Learned counsel for the petitioners submitted that after submission of the aforesaid site inspection report before the Court below, again the plaintiffs filed application on 21.03.2017 stating therein that the said Commissioner while inspecting the site did not see the gate marked as ’kha’ after opening the same, as the defendants had closed the gate by putting a lock kundi and also constructed the bricks wall and as such, prayer was made to seek a direction to the Commissioner to again inspect the disputed site. 8. Learned counsel for the petitioners submitted that by impugned order dated 15.01.2018, application of the plaintiffs’ has been allowed and the Commissioner has again been asked to submit his report on the basis of the facts mentioned in the application, filed by the plaintiffs. 9. Learned counsel for the petitioners submitted that the Court below has allowed the application without due application of mind and without assigning any reason. 10. Learned counsel for the petitioners submitted that there was no occasion to appoint Commissioner for second time, without discarding the earlier report. 11. 9. Learned counsel for the petitioners submitted that the Court below has allowed the application without due application of mind and without assigning any reason. 10. Learned counsel for the petitioners submitted that there was no occasion to appoint Commissioner for second time, without discarding the earlier report. 11. Learned counsel for the petitioners submitted that the very purpose of appointment of Commissioner is frustrated by the Court below by permitting collection of the evidence in respect of possession of the property. 12. Learned counsel for the petitioners submitted that settled proposition of law in respect of appointment of Commissioner, his role and importance, has altogether been ignored by the Court below and as such, the impugned order passed by the Court below is required to be set aside by this Court. 13. Learned counsel further submitted that the very purpose of appointment of Commissioner by appointing successive Commissioner, will create additional evidence before the Court to take a view of such report being submitted and any lacunae in the pleadings or evidence of the party, should not be permitted to be filled by having such successive report. 14. Learned counsel for the petitioners submitted that Order 26 Rule 10 CPC provides for Procedure of Commissioner and sub-Rule (3) of said Rule states that where the Court is for any reason dissatisfied with the proceedings of the Commissioner then it may direct further inquiry to be made. 15. Learned counsel for the petitioners submitted that in the present case, since the Court has not recorded any dissatisfaction against proceedings conducted by the Commissioner and further did not apply due application of mind, then it could not have directed further inquiry to be made by the Commissioner. 16. Learned counsel submitted that until the first Commissioner’s report is not set aside or declared dissatisfactory, the Court cannot direct to prepare fresh Commissioner report. 17. Learned counsel for the petitioners places reliance on a judgment passed in the case of Praveen Parihar Vs. Satish Kumar Phawa reported in 2017 (3) DNJ 1356 . Learned counsel on the strength of said judgment submitted that the Commissioner cannot be appointed to collect evidence. 18. Learned counsel also places reliance on the judgment passed in the cases of Vemba Gounder Vs. Pooncholai Gounder reported in [AIR 1996 (Madras) 347] and Swami Premananda Bharathi Vs. Swami Yogananda Bharathi & Anr. reported in [1985 AIR (Kerala) 83]. Learned counsel on the strength of said judgment submitted that the Commissioner cannot be appointed to collect evidence. 18. Learned counsel also places reliance on the judgment passed in the cases of Vemba Gounder Vs. Pooncholai Gounder reported in [AIR 1996 (Madras) 347] and Swami Premananda Bharathi Vs. Swami Yogananda Bharathi & Anr. reported in [1985 AIR (Kerala) 83]. 19. Per contra, learned counsel for the respondents submitted that both the orders have been rightly passed by the Court below and no interference is required by this Court. 20. Learned counsel for the respondents submitted that the application dated 21.03.2017 had specifically mentioned that while Commissioner had gone to the site for inspection, he clearly recorded that gate marked as ’kha’ was not open and as such, there was some hindrance in giving the exact report with regard to actual physical site. 21. Learned counsel submitted that player was made in the application by sending Commissioner to give the exact report with regard to site in dispute and further, the Court was requested to give direction to the Commissioner to open the gate and the factual position with respect to land marked as ’kha’ was required to be given before the court below. 22. Learned counsel for the respondents submitted that the Court below, after considering the defendants’ application, has come to conclusion that the Commissioner is required to visit again for inspection and submit its report stating the factual situation, as obtaining on the ground in respect of land in dispute and as such, no injury would be caused to any of the party, if the Commissioner is permitted to give fresh inspection report. 23. Learned counsel submitted that it is absolutely incorrect that the purpose of appointment of Commissioner is to collect evidence. 24. Learned counsel submitted that the Court below after considering the evidence led by the parties, has to decide the suit and only on the basis of report of the Commissioner, it cannot be inferred that the said report will be used against any of the party.25. I have considered the submissions made by learned counsel for the parties and perused the material available on record. 26. I have considered the submissions made by learned counsel for the parties and perused the material available on record. 26. This Court finds that the impugned order dated 15.01.2018 has mentioned that earlier report, which was given by the Commissioner had not stated any details with respect to the portion of land, which was marked as kha and as such, the Court below after considering the facts of the case, came to conclusion that the site Commissioner was required to inspect the site again and he was to give fresh report. 27. The submission of learned counsel for the petitioners that the Commissioner has been appointed to collect evidence, is absolutely misplaced. The purpose of appointment of Commissioner is to know the description of the property and is not used for the purpose of creating evidence. 28. This Court finds that as per Order 26 Rule 10, report if any submitted by a Commissioner, if has to be led in evidence in the suit and found part of the record, the Court will always afford opportunity to any of the party and then, examine the Commissioner personally in open Court and further the manner in which the investigation has been done, can also be examined by the Court and further, parties may be afforded opportunity to even question the manner of investigation being done by the Commissioner. 29. This Court finds that merely by appointing Commissioner, it cannot be inferred that the Commissioner has been appointed to collect evidence only. 30. This Court is conscious of the fact that description of property to decide the suit between the parties is a very important fact, which needs to be brought before the Court, as what is the description and location of the property. The Apex Court recently in the case of Rahul S. Shah Vs. Jinendra Kumar Gandhi & Ors. reported in [ (2021)6 SCC 418 ] has directed all the Civil Court/ Executing Courts to appoint Commissioner to know the exact location/status of the property. The said direction has been issued by the Apex Court for a simple reason as after judgments/ degrees are passed, then the execution application has to be decided within a stipulated time. 31. reported in [ (2021)6 SCC 418 ] has directed all the Civil Court/ Executing Courts to appoint Commissioner to know the exact location/status of the property. The said direction has been issued by the Apex Court for a simple reason as after judgments/ degrees are passed, then the execution application has to be decided within a stipulated time. 31. The submission of learned counsel for the petitioners that until earlier report of the Commissioner is set aside or Court is dissatisfied with the proceedings and as such, no successive Commissioner can be appointed, this Court is afraid to accept the submission of the learned counsel for the petitioners, as the case of non-petitioners has been very specific that while preparing the earlier report, the Commissioner did not have access to a particular portion of the land and there was some hindrance in opening the gate. 32. The reliance placed by counsel for the petitioners on a judgment reported in the case of Praveen Parihar (supra), the facts in that case were in respect of dispute being decided by the Rent Tribunal involving the issue of personal and bona fide necessity and the Court had appointed a Commissioner to go on the site and to find out the occupation of the property by a particular party in a particular portion, the Court in such background found that if a suit is filed for personal and bona fide necessity, appointment of Commissioner is not relevant and the evidence which is brought before the Court below, is more relevant to decide the controversy. The case of Praveen Parihar (supra) will not of any assistance. 33. The reliance placed by learned counsel for the petitioners in the cases of Vemba Gounder (supra) and Swami Premananda Bharathi (supra), this Court finds that the Court in these cases has not considered the similar issue. 34. This Court, in the facts of the present case, finds that if it has come on record that the site Commissioner was not able to have full access for considering the entire location of the property, it cannot be inferred that the successive Commissioner cannot be appointed. 35. Accordingly, there is no force in these present writ petitions and the same are accordingly dismissed. 36. A copy of this order be placed in connected petition.