Yousf Lone vs Ahmad Lone

This motion of revision is aimed at revising the order passed by learned Munsiff Bandipora dated 04.08.2001, on an application for issuance an

appropriate direction in the name of Revenue Authorities for the inspection and demarcation of the suit land.

It appears that a suit for perpetual injunction came to be instituted by plain tiff/petitioner before the court of learned Munsiff Bandipora to the

effect that the respondents/defendants be permanently re strained to interfere in his possession in respect of land measuring 8 kanals comprising of

Survey No. 1436 located at Onehgam Sonagam, Tehsil Bandipora, claiming therein that he is in peaceful pos session of the said land in the

capacity of an owner and the defendants/respondents without any right whatsoever, are bent upon to interfere in his possession in respect of the

said land. The respondents/defendants have resisted the suit by filling their written statement, wherein, they have denied the possession of the

plaintiff on the suit land and have claimed the respondent No. 1 in its possession. During the pendency of the suit, when issues were yet to be

framed, the respondent No. 1 defendant came to approach the trial court with the prayer for issuance of appropriate orders in the name of

Revenue Authorities for the spot inspection an demarcation of the land. It is pursuant to this application, the court below came to appoint Nazir of

his court and Palwari of the concerned Halqa as Commissioner with the direction to ascertain and demarcate the suit land and to report about the

actual position existing on spot.

The stand of Mr. Khan, appearing for the petitioner/plaintiff is that commissioner cannot be appointed in the case with an object to collect

evidence of one of the parties in the suit. The question of pos session which is the material issue in the case, has to be proved before the court and

it cannot be determined on the basis of inspection report of the commissioner.

On the other hand, Mr. Qadri, appearing on behalf of the respondents has supported the impugned order of the learned trial court by stating that

the trial court is possessed of absolute powers to issue a commission to any person to whom he thinks fit for elucidating matter in dispute in a suit.

I have considered the rival contentions of the learned counsel for the par ties. Order 26 Rules 9 CPC enviages that

In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidation any matter in dispute, or of

ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the court may issue a

commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court: Provided that, where the

Government has made rules as to the persons to whom such commission shall be issued, the court shall be bound by such rules.

From the bare reading of this rule, it is manifestly clear that a court in a pending suit before it has a discretion to issue a commission to such

person to whom it deems fit for elucidating any dispute in between the parties, but such discretion cannot be exercised in a case where the point of

dispute which is referred to the Commissioner can be conveniently substantiated by the parties by leading their evidence before the court at the trial

of the suit. The court cannot delegate its judicial functions of trial of any material issue in a suit which the court itself is bound to try. The object of

this rule is not to assist a party to collect evidence, where the party can get the evidence itself before the court, but to obtain evidence for

elucidating the matters which are local in character. The power under this rule is conferred on the court to appoint commission for local inspection

in order that it may appreciate the evidence which has already come on record. In the background of this law and on examination of the record, it

is found that the suit pending in between the parties before the court below is on its initial stage in which there is a dispute in between the parties

about the possession of the suit land which can be properly adjudicated by the court after framing all necessary issues in the suit and after recording

the evidence of the parties, for such a purpose, the appointment of commissioner for local investigation under Order 26 Rule 9 CPC is neither

justified nor proper. Moreover no such specific request for appointment of commissioner has been made by the respondent in his application

pursuant to which the impugned order for appointment of commissioner came to be passed by the Court below.

Viewed thus, the impugned order suffers from jurisdictional error and material irregularity, if allowed to stand, would occasion failure of justice.

Therefore, the motion of revision is accepted and the impugned order of the appointment of commissioner recorded by the court below on

04.08.2001 is hereby set aside. No costs. Record of the case be retuned to the leaned trial court along with the copy of this order, where the

learned counsel for the parties are directed to cause their appearance on 26.02.2002.