AI Structured Summary
Not yet generated for this judgment
Judgment
B.K. Patel, J.—Heard learned Counsel for the Petitioner.
Petitioner is the Plaintiff No. 1, opposite party Nos. 6 to 17 are other Plaintiffs and opposite party Nos. 1 to 5 are Defendants in C.S. No. 130 of 2003 of the Court of learned Civil Judge (Junior Division), Chandikhol
In this writ petition, Petitioner has assailed the legality of order dated 29.4.2009 rejecting Petitioner''s application under Order 26, Rule 9 of the CPC for appointment of Civil Court Commissioner for local investigation as to whether the suit land is a part and parcel of suit plot No. 1354 or Defendants'' plot No. 1353 and as to whether the suit land is a vacant land or there is any construction over the land.
Suit land is a strip land measuring 5 kadi x 80 kadi. Plaintiffs'' case is that the suit land situates over their plot No. 1354 on its West. Defendants'' stand is that Plaintiffs'' house extends to the extreme western side of plot No. 1354 up to the eastern boundary of plot No. 1353.
Learned Counsel for the Petitioner contends that the learned Court below rejected the application under Order 26, Rule 9 of the CPC on the sole ground that parties are yet to adduce evidence. It is argued that Order 26, Rule 9 of the CPC does not prescribe any limitation regarding the stage at which the application is to be filed. In view of nature of dispute between the parties in the suit, local investigation ought to be made before parties adduced their evidence. In this connection, learned Counsel for the Petitioner relies upon decision in Mahendranath Parida Vs. Purnananda Parida and Others, .
It is evident that dispute in the case relates to location of the suit land. Plaintiffs claim that the suit land is a part of plot No. 1354 and Defendants claim that the suit land is a part of plot No. 1353. Basically the suit relates to boundary dispute concerning identification, location and measurement of suit land. In Mahendranath Parida v. Purnananda Parida and Ors. (supra), it has been held that when the controversy is as to identification, location or measurement of the land or premise or object, local investigation should be done at an early stage so that the parties are aware of the report of the commissioner and go to trial prepared. The parties against whom the Court report may have gone may choose to adduce evidence in rebuttal. Hence, ordinarily in such type of cases local investigation should not be deferred to a stage after the closure of evidence.
In view of nature of dispute and ratio of the above cited decision, the impugned order holding the application to be not maintainable, as it had been filed before parties adduced their evidence, is not sustainable in law and is liable to be quashed.
Accordingly, the order impugned in this writ petition is quashed. Learned Civil Judge (Junior Division), Chandikhol is directed to pass fresh order on the application in the light of observation made above and ratio of the above cited decision within four weeks from the date of receipt of copy of this order.
Requisites for communication of this order along with a copy of the writ petition be filed with a week.
Urgent certified copy of this order be granted on proper application.