W.P.No.4526/2010
Hiralal Mishra Ram Kishore Sharma & others
27.7.2010
Shri Shailendra Verma, counsel for petitioner.
Shri Rajendra Gupta, counsel for respondents.
This petition is directed against an order dated 20.3.2010 by
IVth Civil Judge Class-II, Satna in civil suit no.100-A/2009 by which
an application filed by petitioner under Order 26 Rule 9 of C.P.C., was
rejected.
Learned counsel for petitioner submitted that in fact on the
spot there is no house in existence and the house which was earlier
constructed has fallen, so the factual position on the spot deserves to
be brought on record by issuing a commission. The trial Court
rejected the application on the ground that petitioner wants to collect
the evidence. It is submitted that to ascertain factual position on the
spot a commission may be issued.
Shri Rajendra Gupta, learned counsel for respondents opposed
the prayer vehemently, who submitted that existence of house has
been admitted by defendant in the written statement and he has
referred paras 14 and 16 of written statement in which the existence
of the house has been accepted by the defendant.
To this, it is submitted by Shri Verma that in fact earlier the
house was in existence in a dilapidated condition, but before filing of
present suit there is no house in existence and only the debris of the
house is on the spot.
Considering the rival contentions of the parties , to determine
the factual position on the spot, a commission deserves to be issued.
The Commission cannot be issued to ascertain, who is in actual
possession of the spot, but commission can be issued to ascertain
what is the factual position on the spot and for this purpose a
commission can very well be issued.
In view of aforesaid, we find it appropriate to allow this
petition and direct the trial Court to issue a commission to ascertain
W.P.No.4526/2010
Hiralal Mishra Ram Kishore Sharma & others
the factual position on the spot. The commission shall be issued in
respect of ascertaining only factual position on the spot and not for
ascertaining who is in possession. After receipt of report of
commission, the trial Court shall proceed further in the matter.
With the aforesaid direction, this petition is finally disposed of,
with no order as to costs.
(Krishn Kumar Lahoti) (Sanjay Yadav)
JUDGE JUDGE
M.