Ghansyam vs Satish Kumar Guptas

Sujoy Paul, Judge

He is heard on admission. In this petition filed under Article 227 of the Constitution of India, the petitioner has challenged the impugned order dated 18.7.2012 whereby his application filed under Order 26 Rule 9 C.P.C. (Annexure P-3) is rejected. Admittedly, the present petitioner is defendant No. 4 before the Court below. The defendant No.4 has not chosen to file any written statement in the said suit. By filing said application, it is prayed that a Commissioner be appointed to examine whether there exists a vacant plot or constructed house in the southern portion of Survey No. 565. The plaintiff took an objection on it and stated that the defendant has not filed any written statement. It is stated in the reply that the present petition is seeking appointment of Commissioner for a land which has nothing to do with the sale deed but the land is totally different.

The Court below has given a finding that this is not the dispute in the suit as to whether which are the plots adjacent to the plot of present petitioner and whether any construction is made on that. The petitioner is seeking enquiry report on a land which is not in question and thereby trying to collect evidence which is not permissible under Order 26 Rule 9 C.P.C.

The petitioner has relied on 2000 LAWS (SC) 3 87 (Shreepat Vs. Rajendra Prasad) and 2010 (3) MPLJ 345 (Mathura Prasad Yadav vs. Sate of M.P.). Lastly, he relied on Jaswant Yadav Vs. Deen Dayal,

I have heard the learned counsel for the petitioner and perused the record. In the present case, the petitioner has not even chosen to file written statement before the Court below. The Court below has given a specific finding that the land on which enquiry is sought to be made is totally different and it has nothing to do with the dispute involved in the civil suit. The petitioner is not in a position to demonstrate as to how the said enquiry is required. In absence of filing written statement and taking categorical objection the petitioner''s application is rightly rejected by the Court below. The judgments cited by the petitioner are based on different fact situation and have no application in the present factual scenario. The scope of interference under Article 227 of the Constitution is well defined. In absence of any jurisdictional error, procedural impropriety, palpable illegality or perversity, no interference is warranted in these proceedings. Another view is possible is not a ground to interfere in these proceedings. The Court below has taken a plausible view which does not require any interference by this Court. Consequently, interference is declined. Petition is dismissed. No cost.