1
W.P.No.5223/10
Premnarayan Tiwari & others Yagya Narayan Tiwari
3.5.2010
Shri S.N.Tiwari, Counsel for petitioners.
This petition is directed against an order dated 8.3.2010 passed
by 2nd Additional District Judge, Jabalpur in Misc.Civil Appeal No.2/10
by which the order passed by 8th Civil Judge Class-I, Jabalpur, in Civil
Suit No.156-A/09 was affirmed. Both the Courts below rejected the
application filed by the petitioners under Order 39 rules 1 & 2 CPC.
These orders have been assailed by the petitioners on the ground that
both the Courts below relied on photographs produced by the
defendant in support of his contention that on the spot, there was no
well in existence, but these photographs were not supported by an
affidavit and the Courts below erred in relying on the photographs and
rejecting the application filed by the petitioners.
From the perusal of the order passed by the Courts below, we
find that there was an affidavit of only plaintiffs in support of their
contention that there exists a well while the respondent specifically
denied this aspect that the well was not in existence since last 10-12
years and with the consent of the parties, the well was filled up and on
the date of filing of the suit, no well was in existence The Courts below
while considering this aspect have also considered the photographs
produced by the respondent, but there was other material also in
support of the contention of the respondent that in fact no well was in
existence on the date of filing of the suit. If the well was in existence,
petitioners ought to have produced definite evidence in this regard and
affidavit of some neighbour ought to have been filed in this regard, but
in absence of which if the Courts below relied on the photographs filed
by respondent in support of non-existence of the well, no fault is
found. Apart from this, respondent moved an application before the
trial Court under Order 26 rule 9 CPC for issuance of commission in
respect of position on the spot which application was opposed by the
petitioners/plaintiffs. It is submitted that in deciding the application
under Order 39 rules 1 & 2 CPC, provisions of Order 26 rule 9 CPC
2
W.P.No.5223/10
Premnarayan Tiwari & others Yagya Narayan Tiwari
3.5.2010
ought not to have been invoked, but the Courts below were having
jurisdiction for issuance of the commission for inspection of the spot
under Order 39 rule 7 CPC. If the prayer was opposed by the
petitioners and the Courts below have drawn adverse inference
against the petitioners, no fault is found. This petition is found without
merit and is dismissed at admission stage with no order as to costs.
(Krishn Kumar Lahoti) (G.S.Solanki)
Judge Judge
C.