Kamruddin and Others vs Vali Mohammed

Sangeet Lodha, J.

This writ petition is directed against the order dt. 30.06.2014 passed by the Civil Judge (Junior Division), Kuchaman City, District Nagaur, whereby an application preferred by the petitioners for appointment of the Commissioner for inspection of the site, stands rejected. Learned counsel submitted that there exists no dispute between the parties in respect of measurements of disputed property and the plaintiff is residing in the portion of the property which fell in his share. Learned counsel submitted that for complete and effective adjudication of the dispute between the parties, it is absolutely necessary that the Commissioner is appointed so that the factual position existing at the site may come on record.

A perusal of the order impugned passed by the Court below reveals that no dispute exists in between the parties in respect of measurements of the disputed property and the neighbourhood thereof and thus, taking into consideration all the relevant aspects of the matter, the Court observed that the Commissioner cannot be appointed for collection of evidence in favour of the parties to the proceedings.

As a matter of fact, the application preferred by the petitioners is absolutely vague. It does not even contain necessary details to clarify as why it is necessary to obtain the site inspection report. It is always open for the petitioners to produce the evidence regarding factum of partition and the respective parties being put into possession over the portion of the property falling in their share. It appears that the application was filed by the petitioners so as to collect evidence in his favour, which cannot be permitted. For the aforementioned reasons, in the considered opinion of this Court, the judicial discretion exercised by the Court below in refusing to appoint the Commissioner does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.

In the result, the writ petition fails, it is hereby dismissed.