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2018 Supreme(P&H) 4773
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Raj Mohan Singh, J.
Barinder Singh - Appellants
Versus
Avtar Singh And Another - Respondent
CR No.7247 of 2018(O&M)
Decided On : 11-12-2018
K.S. Dadwal, Advocate, for the Appellants; Mr. Bhupinder Banga, Advocate, for the Respondents
The main legal point established in the judgment is that the trial court should not collect evidence for a party at a stage when both parties have concluded their evidence and arguments have been heard.
Headnote:
Local Commissioner - Permanent Injunction - Order 24.04.2014, Order 10.10.2018 - CPC
Fact of the Case:
The plaintiffs filed a suit for permanent injunction against the defendants. The trial court took cognizance of an order dated 24.04.2014 at the stage of rebuttal and arguments, and subsequently dismissed an application for recalling the order. The defendants had filed an application for leading additional evidence, which was allowed by the trial court. The case was fixed for rebuttal evidence and arguments.
Finding of the Court:
The court found that there was no necessity for the trial court to ask the Local Commissioner to visit the spot and submit his report at a stage when only arguments were to be heard and the decision was to be pronounced on the basis of evidence led by the parties.
Issues: The issues revolved around the trial court's decision to consider the report of the Local Commissioner at a late stage of the proceedings, after both parties had concluded their evidence and arguments had been heard.
Ratio Decidendi: The court held that the trial court's direction to the Local Commissioner to visit the spot and submit a report after the conclusion of evidence and arguments was unnecessary and amounted to collecting evidence for a party at a stage when the matter had already been argued.
Final Decision: The revision petition was allowed, and the impugned orders were set aside. The trial court was directed to proceed with the case in accordance with law and to hear the arguments and decide the case without taking into consideration the report of the Local Commissioner.
JUDGMENT
Raj Mohan Singh, J. - This revision petition has been preferred by the petitioners against the order dated 20.09.2018 passed by Additional Civil Judge (Senior Division), Garshankar, District Hoshiarpur, vide which the trial Court took cognizance of the order dated 24.04.2014 at the stage of rebuttal and arguments and order dated 10.10.2018 passed by the Additional Civil Judge (Senior Division), Garshankar, District Hoshiarpr, vide which the application filed for recalling of the order dated 20.09.2018 was also dismissed.
2. Perusal of the record would show that the plaintiffs/petitioners filed a suit for permanent injunction, restraining the defendants from demolishing and creating any obstruction in the use of suit property as shown in the site plan. Plaintiffs also sought restraint qua dispossession of the plaintiffs from their peaceful possession and from changing the nature of the land. The suit was filed on 13.06.2013 to which written statement was filed by the defendants on 21.01.2014. Before filing the written statement, an application was filed on 05.08.2013 for appointment of Local Commissioner by the defendants. The prayer was allowed vide order dated 24.04.2014 and issues were also framed on the same day. The order appointing Local Commissioner was never implemented nor the defendants had pressed for the same at the relevant stage. In the meanwhile, plaintiffs/petitioners concluded their evidence and closed the same on 07.03.2018. Defendants also closed their evidence on 19.05.2018.
3. Thereafter, defendants even filed an application for leading additional evidence on 18.07.2018 which was allowed by the trial Court vide order dated 24.08.2018 on the basis of no objections raised by the plaintiffs/petitioners against placing on record the sale deed by means of additional evidence. Plaintiffs did not rebut the factum of additional evidence led by the parties. Thereafter, the case was fixed for rebuttal evidence (if any) and for arguments.
4. Trial Court vide order dated 20.09.2018 recorded that no rebuttal evidence was present and on the joint statement of the parties, the Local Commissioner which was appointed on 24.04.2014 was taken into consideration. Since the Local Commissioner did not visit the spot and did not file his report, nor any notice was issued to the Local Commissioner to submit his report, therefore, notice was issued to Surinder Pal, Advocate to visit the spot and submit his report.
5. Against the order dated 20.09.2018 passed by Additional Civil Judge (Senior Division), Garshankar, plaintiffs/petitioners filed an application for recalling of order dated 20.09.2018 on the premise that after conclusion of evidence by both the sides, the case was fixed for arguments. Even arguments were addressed by respective learned counsel for the parties. Necessary pleadings made in para Nos.2 and 3 of the application are to the following effect:-
"2. That in the case the plaintiff after leading their entire evidence closed their evidence and the defendants were to lead their evidence inspite of many opportunities the defendants did not lead any evidence and their evidence was ultimately closed by them on 19.05.2018 and the case was fixed for arguments. The arguments were addressed by the respective counsel for the parties.
3. That the case was thereafter adjourned. However, the order could not be announced for some dates. The Hon'ble Court suo moto called the report regarding the existence position of the spot from the Local Commissioner. The Local Commissioner was appointed by Hon'ble Court at the time of deciding the stay application on 20.09.2014 and fee of the Local Commissioner was assessed by the Court which was to be paid by the defendants. But the defendants did not pay the fee of the Local Commissioner at that time and no docket issued with a Local Commissioner and after that both the parties conclude the evidence."
6. In reply to the aforesaid paras of the application for recalling of order dated
