Mool Chand vs The Civil Judge and Others

Mahesh Bhagwati

By way of the instant writ petition, the petitioner has beseeched to quash and setaside the order dated 3rd November, 2011 passed by the trial court on an application filed by the plaintiff-petitioner, whereby he implored the Court to appoint a Commissioner for taking stock of the site. Having heard the Learned Counsel for the petitioner, it is revealed that the plaintiff-petitioner filed a suit against the respondents-defendants for permanent injunction together with an application under Order 39 Rule 1 and 2 CPC. During the pendency of the application of temporary injunction, the petitioner filed an application imploring the Court to appoint a Commissioner to take the stock of the site and have a report about the electricity line passing through the house of both the plaintiff and respondent. The learned trial court is found to have dismissed the application on the ground that the court was not required to collect the evidence on behalf of the plaintiff-petitioner. If the defendant had given the wrong information with regard to the electricity line, then it was for him to prove the same. The learned trial court did not think it proper to appoint a Commissioner for the inspection of the site.

this Court does not deem just and proper to invoke extraordinary jurisdiction to interfere with the finding of fact. It is exclusive domain of the learned trial court to decide as to whether in the facts and circumstances of the case, the Commissioner is required to be appointed for the inspection of the site or not. I do not find any ground to interfere with the impugned order and thus, the writ petition being devoid of any substance deserves to be dismissed, which stands dismissed accordingly. Consequent upon the dismissal of writ petition, the stay application, filed therewith, does not survive and that also stands dismissed.