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Judgment
Satish K. Agnihotri, J.—By this petition under Article 227 of the constitution of India, the petitioners seek to challenge the legality and validity of the order dated 29-8-2008 (Annexure P/12) whereby the district Judge, Korba, in an application filed by the plaintiff under Order 39, Rule 7 read with Order 26 Rule 9 of the code of Civil procedure, 1908 (for short, "CPC"), ordered to appoint a commissioner to verify the possession of the plaint schedule land.
The brief facts, in nutshell, as projected by the petitioners are that the respondent/plaintiff filed a suit for specific performance in the Court of District Judge, Korba, in August, 2007. Written statement was filed by the petitioners/respondents and counter claim was filed in September, 2007. Thereafter, the plaintiff/ respondent No.1 filed an application under Order 39 Rule 7 read with Order 26 Rule 9 of the CPC for appointment of a Commissioner for spot inspection with regard to the possession of the property in respect of the petition schedule land. The District judge, Korba, by the impugned order dated 29-8-2008 allowed the application partly by appointing a commissioner for spot inspection in respect of the present status of the possession on the petition schedule land. Thus, this petition by the petitioners/defendants on the ground that the order dated 5-4-2008 (Annexure P/8) passed by the District Judge, in an application filed under Order 39, Rule 1 and 2 of the CPC, where prima facie, finding with regard to the possession of the property has been given, operates as res judicata. Thus, no order ought to have been passed in subsequent application filed under Order 39 Rule 7 read with Order 26 Rule 9 of the CPC.
Mr. Sanjay S. Agrawal, learned counsel appearing for the petitioners submits that the commission cannot be appointed to determine the possession the property and the Court ought to have decided the possession by proper evidence and documents.
Mr. P.K. Verma, learned Senior Advocate appearing for the plaintiff/ first respondent supports the impugned order passed by the court below.
I have learned counsel appearing for the parties, perused the pleadings and documents appended thereto.
Law with regard to appointment of a commission is clear. The commission can be appointed only for the purpose of elucidating 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, not for the purpose of recording the finding on the basis commission''s report.
In the matter of M/s. Praga Tools Corporation Ltd. Vs. Smt. Mahboobunnissa Begum and Others etc. etc., Hon''ble the Supreme Court observed as under:
12.....The trial Court may have appointed a Commissioner to carry out survey but ultimately the findings had to be recorded by the trial Court. The report of the Commissioner could only be and aid to the trial court in arriving at its findings. Te trial court has allowed parties to lead oral as well as documentary evidence. The trial court has complied with the directions of this Court.
I am of the considered opinion that the Commissioner is normally not appointed to improve case of one party in adjudication of the pending suit Even otherwise; the Commissioner should be appointed in cases where it is not possible to ascertain the facts on the basis of evidences and documents produced by the parties. Thus, the order of appointment of the Commissioner may be for the purpose of spot inspection only, not for the purpose of recording finding as conclusive. The same has to be considered after examining proper dvedence 4 and documents produced by the parties.
In view of the foregoing, the impugned order is modified to the above extent. Accordingly, the petition is partly allowed. No order asto costs.