Narayan vs Heeralal and Others

R.S. Chauhan, J.—The petitioner-plaintiff is aggrieved by the order dated 15.9.2011 passed by the Additional District & Sessions Judge No. 1, Sikar whereby the learned Judge has rejected the petitioner''s application under Order 26, Rule 9 CPC for appointment of Commissioner.

Mr. Kamal Kumar Mathur, the learned counsel for the petitioner, has vehemently contended that there were two suits filed by the petitioner-plaintiff against the respondents-defendants. While in the present suit the defendant has clearly denied the factum of partition of the property in dispute, in the other suit he has admitted the partition. Thus, in order to know the exact share which fell to each of the parties, it was imperative that a commissioner be appointed.

Secondly, the defendant is not coming with clean hands before the civil court. Thus, in order to prove the fact that he was coming with unclean hands, appointment of the commissioner was imperative.

On the other hand, Mr. Amit Singh Shekhawat, the learned counsel for the respondents, has contended that since the factum of partition has been denied by the defendants, in this suit, an issue would have to be framed with regard to the question whether partition did take place within the family or not? Thus, it is for the plaintiff to prove the fact that the partition did take place in accordance with law. Therefore, a commissioner could not be appointed in order to create evidence which may be in favour of the plaintiff. After all, the plaintiff has to prove his case on his own strength. According to the learned counsel, this is the precise reason given by the learned Judge for dismissing the application. Therefore, according to him, the impugned order does not deserve to be interfered with.

Heard the learned counsel for the parties and perused the impugned order.

It is, indeed, trite to state that a commissioner cannot be appointed for the sake of creating an evidence which might be beneficial to one of the parties to the suit. Since the petitioner has claimed that the property in dispute was duly partitioned thirty five years ago by the father amongst the children and the mother, it is a fact to be proven by him. Since the commissioner was being appointed for the purpose of measuring each share which allegedly fell to each of the parties, obviously, it would create evidence which could be used by the petitioner in order to establish his plea. Therefore, the learned Judge was justified in rejecting the application as appointment of commissioner could not be used for creating an evidence in favour of the petitioner.

Hence, this court does not find any illegality or perversity in the impugned order. This petition being devoid of any merit, is hereby, dismissed. The stay application also stands dismissed.