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Judgment
Gurpal Singh Ahluwalia, J
This petition under Article 227 of Constitution of India has been filed seeking following reliefs:
"1) Issue a writ in the nature of certiorari quashing the impugned orders dated 22.02.2024 and 28.02.2024, passed in RCS 400094/2014 passed by the VIIIth District Judge Satna (M.P.)
2) Call for the entire records from the respondents for kind perusal of the Hon'ble Court.
3) Issue any other writ, order or direction as this Hon'ble Court deems fit and proper in the interest of justice."
It is submitted by counsel for petitioner that defendant Smt. Prema Payasi had not entered in the witness box and her Power of Attorney holder had appeared on her behalf, therefore, application under Section 151 of C.P.C. was filed for compelling defendant Smt. Prema Payasi to appear as a witness. However, by impugned order dated 22.02.2024, the said application has been rejected. Similarly, it is submitted that application under Order 26 Rule 9 CPC was filed to verify that who is in possession of property in dispute. However, the said application has been rejected by order dated 28.02.2024.
It is submitted that since it is necessary to verify that who is in possession of property in dispute, therefore, the Court should have appointed the local Commissioner. It is further submitted that it is well established principle of law that holder of Power of Attorney cannot depose for and on behalf of the principal in respect of the act, which was not done by Power of Attorney holder.
Heard the learned counsel for petitioner.
If the trial Court comes to a conclusion that certain part of evidence given by Power of Attorney holder cannot be read because the said act was not performed by Power of Attorney holder, then it is defendant Smt. Prema Payasi, who would suffer. The petitioner would not suffer on account of non-examination of Smt. Prema Payasi. On the contrary, he may take advantage of that.
Under these circumstances, this Court does not find any good reason for directing Smt. Prema Payasi to appear as a witness on an application filed by petitioner/plaintiff.
So far as the question of appointment of local Commissioner under Order 26 Rule 9 CPC is concerned, it is suffice to mention here that the jurisdiction of trial Court to adjudicate the lis cannot be delegated to the local Commissioner. Local Commissioner cannot be appointed to collect evidence. Whether plaintiff is in possession or defendant is in possession is a pure question of fact, which has to be proved by the parties by leading evidence. The local Commissioner cannot be appointed for the same.
Accordingly, no case is made out warranting interference.
Petition fails and is hereby dismissed.