Rohitash Singh vs Additional District and Session Judge, Behror and Others

Alok Sharma

This petition has been filed against the order dated 17.04.2012 whereby the appellate court i.e. the Additional District and Sessions Judge, Behror has dismissed the objections filed by the appellant (now the petitioner before this Court) to a local inspection report dated 31.12.2010 submitted by the Commissioner appointed by the appellate court in the exercise of power under Order 26 Rule 9CPC. Perused the writ petition and the impugned order dated 17.04.2012. Heard and considered.

The order of the court below indicates that the report was prepared by the Commissioner in the presence of the counsel for the parties in appeal and that there was no material from the record before the court below to uphold the allegation that the report was a doctored one at the instance of the opposite party. The court below held that the application for appointment of a Commissioner afresh overlooking the report dated 31.12.2010 submitted by the Commissioner earlier appointed by the court after a local inspection of the disputed site was only an attempt to delay the proceedings.

To my mind, the discretion of the trial court as exercised under the impugned order dated 17.04.2012 does not appear to be perverse or vitiated by any illegality. The allegation complicity of the Commissioner with one of the party in appeal was a bald allegation without anything more and only an attempt to create suspicion. It is also on record that the local inspection by the Commissioner appointed by the court was held on 31.12.2010 and the objections thereto was filed only on 05.06.2011. The delay in objecting to the report renders the challenge/objection absolutely unworthy of credence and is fatal to the petitioner''s case. Even otherwise, the jurisdiction of this Court under Article 227 of the Constitution of India is extremely limited as held by the Hon''ble Supreme Court in the cases of Surya Dev Rai Vs. Ram Chander Rai and Others, and Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, The circumstances as detailed by the Hon''ble Supreme Court for invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India do not even remotely obtain in this case. In this view of the matter, the writ petition is without force and the same is dismissed. Stay application also stands dismissed.