Kashmir Singh vs Ghanshyam

Sheel Nagu, J.—Heard on the question of admission.

This petition under Article 227 of Constitution of India assails interlocutory order dated 10/04/2014 passed in civil suit No. 37-A/2012 by 1st Civil Judge, Class-II, Dabra, Dist. Gwalior, whereby, an application under Order 26 Rule 9 of CPC for local inspection by appointing a Commissioner preferred by the defendant No. 1 (petitioner herein) has been rejected.

Learned counsel for the rival parties are heard on the question of admission.

Learned counsel for the petitioner contends by placing reliance on the decision in the case of Bali Ram Vs. Mela Ram and Another, and in the case of Smt. Vimla Devi & Ors. Vs. Smt. Shanti Bai & Ors. reported in 1999 MPJR (II) SN 43 that in the given facts and circumstances, the controversy involved herein cannot be resolved unless local inspection is made. It is further contended that since the dispute centers around the right to way over the land in question, local inspection ought to have been permitted.

Per contra, learned counsel for the respondent No. 1 submits that the trial court has rightly rejected the application for local inspection as inspection is an information sought to be discovered by way of local inspection can very well be adduced in evidence. It is further contended that the factum of existence or otherwise of the way over the said property can be proved in evidence. It is lastly contended that the said issue of right to way exclusively falls within the domain of oral/documentary evidence and the same cannot be decided by local inspection.

Perusal of the impugned order indicates that the trial court found that the issue of way over the said land can very well be proved or disproved by recording the statement of witnesses and in such situation local inspection was denied.

The reliance placed by the petitioner on the single Bench decision of this Court in the case of Smt. Vimla Devi (supra) is of no avail to the petitioner since the fact situation in that case involved the issue of encroachment which is absent in the present case and reliance placed in the case of Baliram (Supra) also pertains to encroachment and is, therefore, of no avail to the petitioner.

Taking into consideration the arguments of learned counsel for the rival parties and the material placed on record, this Court finds that the Court below has taken a reasonable view while rejecting the application under Order 26 Rule 9 of CPC.

It is settled principle of law that something which can be proved or disputed by collection of evidence cannot be made subject matter of local inspection.

In view of above, no case is made out for interference under Article 227 of the Constitution of India.

Accordingly, this petition deserves to be and is hereby dismissed. No order as to cost.