Onkar Singh vs Raghunath Singh

The present writ petition has been preferred against the order dated 06.08.2019, passed by learned Civil Judge & Judicial Magistrate, Jaitaran, District Pali (hereinafter referred to as the 'trial Court'), vide which petitioner's application dated 05.08.2019 for appointment of Commissioner afresh has been rejected.

Succinctly stated the facts appertain the case are that the petitioner-plaintiff had filed a suit for injunction alongwith an application for grant of temporary injunction under Order XXXIX Rule 7 of the Code of Civil Procedure. An ad-interim injunction in the plaintiff's favour was granted by the Court. Before the temporary injunction application could be finally decided, the defendant moved an application dated 01.08.2019, under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure and prayed that a Commissioner be appointed to apprise the factual position obtaining on the site. It was, interalia, pleaded in the application that the defendant has demolished his old construction; and that the facts as portrayed by the plaintiff are not correct and the same be ascertained through appointment of a Commissioner.

The plaintiff-present petitioner opposed the application for appointment of Commissioner by way of filing a reply dated 02.08.2019 and submitted that there is no necessity of appointing a Commissioner.

Learned Trial Court by way of its order dated 03.08.2019, proceeded to appoint a Commissioner, interalia, observing that a perusal of the pleadings and stand of rival parties makes it clear that the basic dispute between the parties is with respect to measurement and no specific documentary evidence is available on record so as to reach to a correct conclusion. The Commissioner was asked to report about the status of the site with a mandate to furnish photographs of the site in question.

After appointment of the Commissioner, vide order dated 03.08.2019, the Commissioner Mr. Pradhuman Shrimali appeared at the site. The Commissioner's report records that due notice to both the parties were given and the parties were asked to present themselves at the site at 10 am on 04.08.2019. On the date and time fixed, he appeared and prepared a report.

When the Commissioner had furnished his report, the plaintiff-petitioner filed objections with respect to the report and contended that Commissioner has portrayed wrong facts and the report is not in accordance with facts situation obtaining in the case and that the 'chabutari' mentioned in the report and the construction of new wall in place of old/existing wall was wrongly recorded. With these assertions, it was prayed that a new Commissioner be appointed and fresh report be summoned.

The petitioner's aforesaid application came to be rejected by the trial Court, vide its order dated 06.08.2019 interealia with an observation that the petitioner has not raised such objections when the report was prepared and that simply because the report is not as desired by the petitioner, the same cannot be discarded outrightly.

Mr. Sunil Joshi, learned counsel for the petitioner assailing the order dated 06.08.2019 contended that the Commissioner's report does not bear signatures of the parties and that the notice of site visit was issued/served upon the petitioner's counsel and not upon the petitioner. It was also interalia contended that the Commissioner's report does not throw light over the real controversy between the parties, more particularly with respect to 2ft common open space.

Mr. Bhaiya, learned counsel for the respondent submitted that the Commissioner's report is complete in all respect and that most of the objections being raised by the petitioner at this stage were not taken by him in his objections filed on 05.08.2019. He further argued that though the petitioner has not placed on record the photographs, which were furnished by the Commissioner along with his report, but the same clearly reveal that the petitioner (his son) as well as his counsel were present at the site. It was also argued that merely because the report does not bear the signatures of the parties, the same cannot be rejected outrightly, as held by this Court in Deepa Ram & Ors Vs. Hari Ram & Ors. reported in 2015 (2) DNJ (Raj.) 875.

I have heard learned counsel for the parties and perused the material placed on record.

A simple look at the objection filed by the petitioner on 05.08.2019 (Annx.4) reveals that while raising objection regarding correctness of the Commissioner's report, the petitioner had requested the Court to appoint a new Commissioner. Any objection or grudge that no notice was issued to the petitioner was raised nor was the objection about non-availability of signatures of the parties, was taken in the manner it has been canvased before this Court.

In considered opinion of this Court, the petitioner's objection that the Commissioner issued a notice to the counsel and not to the petitioner, cannot be considered or countenanced at this juncture, particularly when the petitioner's son was present at the time of inspection.

As far as obtaining signatures of the parties is concerned, the same becomes an empty formality. Such contention or stand is not of much importance until and unless the petitioner asserts that the Commissioner did not visit the site at all and/or he or his son was not available at the time of site inspection.

The judgment cited by Mr. Bhaiya, learned counsel for the respondent in the case of Deepa Ram (supra) does not lend any support to what has been argued by him. This judgment does not hold that the Commissioner's report is valid, inspite of the fact that it does not bear signatures of the parties.

Be that as it may, the learned trial Court has not finally pronounced upon petitioner's objection regarding correctness and veracity of the report, as such it will be open for the petitioner to show or raise just objections with respect to Commissioner's report, while arguing temporary injunction application finally.

Except the indulgence aforesaid, this Court does not find any substance in the writ petition.

The writ petition is, therefore, dismissed.

The stay application is also dismissed.