Prem Kumar vs Gurdeep Singh

Sat Pal, J.—This petition has been, directed against the order dated 17th November, 1997 passed by the Civil Judge, Junior Division, Ferozepur. By this order the learned Civil Judge has rejected the application filed by the petitioner/defendant for appointment of Local Commissioner to ascertain as to which party is in possession of the suit land.

I have heard the learned counsel for the petitioner. Shri Chopra submits that the issues in this case were framed on 28th. August, 1996 and evidence of the plaintiff was closed on 1st April, 1997. He further submits that thereafter the first date fixed for defendant evidence was 12th May, 1997, when the learned presiding officer was on leave and only on 6th June, 1997, the case was adjourned on the request of the petitioner and on the next date of hearing i.e. 30th July, 1997, the, present application was filed. He, therefore, contends that the learned trial Court was not right in rejecting the application of the petitioner defendant.

As stated herein above, the issues were framed on 28th August, 1996. It is true that in a suitable case where the Court deems a local investigation to be reasonable or proper for the purpose of proper adjudication of the case, the local commissioner can be appointed under Order 26 Rule 9 Civil Procedure Code. But in the present case as stated in the impugned order, the application has been made after three years from the date of filing of the suit and even more than a year from the date when the issues were framed. In these circumstances, I am of the opinion that the learned trial Court was correct in rejecting the application of the petitioner.

The learned counsel for the petitioner, however, submits that while deciding this application, in para 6 of the impugned order, the learned trial Court has given a finding with regard to the possession. It is true that the learned trial Court has given some observation with regard to the possession which no doubt is only for the purpose of deciding the application filed by the petitioner under Order 26 Rule 9 Civil Procedure Code. However, I make it clear that the observations made in para 6 of the impugned order shall not have any bearing on the merits aof the case. With these observations, the petition stands dismissed.