C.R. No. 2747 of 2009 1
In the High Court for the States of Punjab and Haryana at Chandigarh
...
C.R. No. 2747 of 2009
Date of decision: May 15, 2009
Prithvi Singh son of Udmi Ram ..Petitioner
Versus
Om Parkash and others ..Respondents
Coram: Hon'ble Mr.Justice Rakesh Kumar Garg
Present: Mr. Sanjay Mittal, Advocate
for the petitioner.
...
Rakesh Kumar Garg,J.
This is defendant’s revision petition challenging the order dated
15.4.2009 passed by the Additional Civil Judge (Senior Division), Narnaul vide
which application filed by the petitioner for leading additional evidence was
dismissed.
As per the averments made in this petition, respondent No.1 filed a
suit for permanent injunction against the defendant restraining him from creating
any obstruction in the use of the plaintiff over the passage existing in the eastern
side of the residential house of the petitioner.
The suit was contested by the petitioner taking a plea that plaintiff
had produced a wrong site plan showing wrong facts and no passage exists
towards the eastern side of the plaintiff’s house. It was further stated that the
disputed site was a part of Ahata No.14 Ghair No.29.
Defendant also filed counter claim seeking a decree of mandatory
and permanent injunction against the plaintiff.
During the pendency of the suit, the petitioner had moved an
application under Order 26 Rule 9 CPC on 16.5.2005 for appointment of a local
commissioner in order to ascertain whether the site in dispute was a part of their
C.R. No. 2747 of 2009 2
residential house or it was a passage. The application was dismissed vide order
dated 1.11.2007.
After the petitioner had led his evidence, the case was fixed for
rebuttal, if any, as well as for arguments. The petitioner filed an application for
leading additional evidence by way of appointment of a Local Commissioner to
inspect the disputed site and to submit a report in respect of the existing state of
affairs of disputed site. The aforesaid application was dismissed by the trial
Court vide impugned order dated 15.4.2009 observing that there was no ground
to permit the petitioner to lead any additional evidence.
I have heard learned counsel for the petitioner. It is not disputed
that a similar application dated 16.5.2005 was filed by the petitioner for
appointment of a Local Commissioner which was dismissed by the trial Court
vide order dated 1.11.2007. From the very beginning, it is the case of the plaintiff
that the property in dispute is a thoroughfare whereas the petitioner had taken a
specific stand that disputed site was his exclusive property being used as a
private Sahan. On the pleadings of the parties, the issues were framed on
7.2.2005. The parties have already led evidence in support of their claim. The
parties knew their case very well from the very beginning. There is no new
ground to permit the petitioner to lead any additional evidence. Moreover, there
is no dispute of demarcation or location of the property in dispute and similar
prayer of the petitioner stood rejected vide order dated 1.11.2007 which was not
challenged by him.
Thus, I find no reason to interfere in the impugned order.
No merits. Dismissed.
May 15, 2009 (RAKESH KUMAR GARG)
nk JUDGE