V.P. Bhandari vs Dr. Kailash Sood and Another

V.K. Ahuja, J.—The Plaintiff/Petitioner has filed the present petition against the order passed by the learned trial Court dismissing the application under Order 26 Rule 9 C.P.C., for appointment of a Local Commissioner.

I have heard the learned Counsel for the parties and have gone through the record of the case.

The application was dismissed by the learned trial Court by observing that the case was fixed for the Defendant''s evidence and if the present application is allowed, the same would amount to fill in the lacunas, if any, left in the evidence of the Plaintiff. The suit was originally filed for possession as well as for mandatory injunction and it was for the Plaintiff to lead evidence in support of his case before his evidence was closed, which was not done by him. He came up with the present prayer after his evidence has been closed and the case was fixed for Defendant''s evidence. It has been rightly observed by the learned trial Court that he cannot be permitted to set up a new case after his evidence has already been closed and it is only an attempt to fill in the lacunas, if any. Therefore, there is no ground made out to allow the application at this stage. However, if the Court comes to the conclusion at the time of final hearing that the appointment of the Local Commissioner is necessary in view of the evidence led by the parties, it can consider the prayer made and it shall consider the question of appointment of the Local Commissioner, if any. There is no merit in the petition filed by the Petitioner, which is dismissed accordingly and so also the pending application(s), if any.

Any observations made while disposing of this petition, shall not be construed by the learned trial Court as an opinion expressed on the merits of the case.

Parties through their learned Counsel are directed to put up appearance before the learned trial Court on 15th February, 2011. A copy of the judgment alongwith record of the case be sent to the Court concerned forthwith.