Parmeshwari Devi And Ors vs Sohan Lal And Ors

This writ petition has been filed aggrieved against the order dated 4/1/2020 (Annex.8) passed by the trial court, whereby, the application filed by the

petitioners seeking appointment of Commissioner has been rejected.

The respondents filed a suit for declaration and injunction against the petitioners and others pertaining to the way on account of customary easement.

Along with the suit, an application under Order XXXIX Rule 1 and 2 CPC was filed seeking temporary injunction.

The State filed its written statement and denied the averments made in the plaint.

During pendency of the application, the petitioners filed an application under Order XXXIX Rule 7 CPC for appointment of local Commissioner to

report on the existence of alternative way etc.

The application was contested by the plaintiffs.

The trial court after hearing the parties, came to the conclusion that as to the availability of alternative way, the same is required to be proved by the

parties by leading evidence. The said aspect cannot be determined through Commissioner for collection of evidence and consequently rejected the

application.

Learned counsel for the petitioners with reference to the documents produced with the written statement of the State and produced by the petitioners

themselves before the trial court, made submissions that the plea raised by the plaintiffs is ex facie incorrect, which aspect is clear from the material

on record and that if the Commissioner was appointed, the said aspect would be fortified and, therefore, the trial court was not justified in rejecting the

application for appointment of Commissioner and, therefore, the order impugned deserves to be quashed and set aside.

I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.

At the stage of decision of application under Order XXXIX Rule 1 & 2 CPC, the trial is required to prima facie examine the plea raised by the parties

claiming injunction and resisting the same. Once as per the petitioners’ own assertion the material already available on record indicates sufficient

support for the petitioners in relation to the case set up by them, the prayer made for appointment of local Commissioner for the same aspect can only

be termed as an attempt to gather further evidence in respect of the plea raised, which essentially is not the purpose of appointment of Commissioner.

The trial court in those circumstances was justified in rejecting the application filed by the petitioners.

No case for interference in the impugned order is made out. The writ petition has no substance and the same is, therefore, dismissed.