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SUNIL DUTTA MISHRA
Asraf Ansari S/o Late Kamrujama Ansari – Appellant
Versus
Jitendra Prasad S/o Ram Charan Sah – Respondent
JUDGMENT :
SUNIL DUTTA MISHRA, J.
1. Heard learned counsel for the parties.
2. This Civil Miscellaneous Application has been filed for setting aside the order dated 17.01.2018 passed in Title Suit No. 435 of 2009 by the learned Court of Sub-Judge 1st, Kaimur at Bhabua whereby and whereunder the learned Court below has rejected the petition dated 07.08.2014 filed by the petitioner for appointment of Pleader Commissioner.
3. Brief facts of the case are that the respondent being plaintiff filed the suit being T.S. No. 435 of 2009 for declaration of title and possession over the suit land. Petitioner is one of the substituted legal heirs of original defendant who filed the petition dated 07.08.2014 for appointment of Pleader Commissioner to inspect the suit land and to submit a report including whether there is pakka room, hand pump, tree and a shop on the suit land or not. It was stated in the petition that PW-2 in his cross-examination in Para 7 denied the said fact. It is essential to bring the correct fact on record. The said petition was rejected observing that Pleader Commissioner cannot be appointed for controverting the statement made by the witness nor the same can be done for col
The discretion to issue a Commission for local investigation lies with the trial Court, and the report of the Commissioner is not binding on the trial Court.
The court ruled that the appointment of a Pleader Commissioner is not warranted when evidence can be conveniently provided by the parties themselves, especially before trial has progressed.
The court ruled that plaintiffs are responsible for proving their claims in litigation and cannot rely on the court to gather evidence on their behalf, emphasizing the judicial principle of party res....
The court determined the necessity of appointing a Pleader Commissioner for proper adjudication despite delays in proceedings, emphasizing compliance with prior orders.
The central legal point established in the judgment is that the appointment of a Commissioner for local investigation should only be done for convenience and after considering the evidence produced b....
The appointment of a Local Commissioner for premises inspection can be justified if it is necessary for the adjudication of the case, and the report prepared by the Local Commissioner can facilitate ....
A plaintiff cannot seek a Local Commissioner to gather evidence if there is no substantial basis for such request, particularly when the burden of proof lies with them regarding ownership claims.
The court established that the appointment of a commissioner under Order XXVI Rule 9 of the CPC is not to be used as a means to collect evidence after the closure of proceedings, and such application....
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