In CR-7801-2018-PUNJ HC-Appointment of Local Commissioner under Order 26 Rule 9 of CPC can be made at any stage of trial and non-filing of written statement can't act as bar to same: P&H HC
Justice Harkesh Manuja [21-11-2022]

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Read Order: Mohd. Ismail @ Ismaila (deceased thr. Lrs.) v. Anil Kumar Goyal (Modi)


 

Monika Rahar

 

Chandigarh, November 24, 2022: While dealing with a revision petition, the High Court of Punjab and Haryana has held that the  appointment of Local Commissioner under Order 26 Rule 9 of the CPC can be made at any stage of trial and non-filing of written statement can't act as a bar to the same.

 

Further, the Bench of Justice Harkesh Manuja held,"Otherwise also, once a discretion has been exercised by the learned trial court for the purpose of carrying out substantial justice, I do not deem it appropriate to interfere with the same in the revisional jurisdiction under Article 227 of the Constitution of India, as the veracity of the report can always be challenged by filing objections or cross-examining the Local Commissioner during trial."

 

By way of present revision petition, challenge was made to the order of the Trial Court whereby an application filed at the instance of respondent-defendant, seeking appointment of Local Commissioner, was allowed.

 

Facts leading to the present case are that a suit for permanent injunction was filed, at the instance of petitioners-plaintiffs while praying for restraining the respondent- defendant from dispossessing or causing any interference in their possession over the suit property. 

 

It was pleaded in the plaint that the predecessor of the petitioners/ plaintiffs,  happened to be a lessee/tenant over the suit property and after his death, the petitioner(s) being his legal representatives, became tenant. It was also pleaded that few shops were also constructed by the petitioners- plaintiffs over some portion of the suit property. 

 

Alleging forcible threat of dispossession at the hands of respondent-defendant, the petitioners-plaintiffs filed a suit for permanent injunction.

 

Upon notice, the respondent-defendant appeared and moved an application seeking appointment of Local Commissioner, so as to visit the spot and to find out the existing position thereof. It was also stated in the application that there were no shops existing over the land in dispute, rather, a renowned Dharamshala Dera Baba Narsingh Dass Ji Complex along with vast open parking stand was existing thereon along with number of shops.

 

This application was allowed, hence the present petition.

 

Impugning the aforesaid order, the counsel for the petitioners contended that the application filed at the instance of respondent-defendant was premature as the prayer was made even before the filing of written statement. He further submitted that in fact, the respondent-defendant was trying to create evidence in his support through appointment of Local Commissioner.

 

On the other hand, the counsel for the respondent submitted that as part of the dispute also related to the factum of existing position at the spot, as such, the appointment of Local Commissioner was necessary for the complete and effective adjudication of the case in hand and, as such, the discretion was  rightly exercised in favour of the respondent.

 

At the very outset, the Court observed that since a part of controversy/dispute was related to the factum of existing position of the property in dispute, thus, considering the case facts and also for the purpose of effective adjudication of dispute between the parties, it was necessary so as to find out the existing position at the spot. 

 

"In this circumstances, the appointment of Local Commissioner would in fact even enable the court to properly and correctly understand the issue and also to decide the rights of the parties in an effective manner", the Bench observed. 

 

Still further, the Court observed from a perusal of the impugned order that the appointment of Local Commissioner was not ordered for the purpose of finding out the factum of possession over the suit property, rather it was done for elucidating the matter in dispute, so as to find out existing position at the spot as regards construction etc., resultantly, the Court opined, 

 

"the same cannot be said to be done for the purposes of collecting evidence."

 

Even otherwise, Justice Manuja added that the appointment of Local Commissioner under Order 26 Rule 9 of the CPC can be made at any stage of trial and non-filing of written statement can't act as a bar to the same. 

 

Further, the Court also observed,

 

"Otherwise also, once a discretion has been exercised by the learned trial court for the purpose of carrying out substantial justice, I do not deem it appropriate to interfere with the same in the revisional jurisdiction under Article 227 of the Constitution of India, as the veracity of the report can always be challenged by filing objections or cross-examining the Local Commissioner during trial."

 

Accordingly, the petition was dismissed. 

 

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