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2010 Supreme(All) 714
ALLAHABAD HIGH COURT
Krishna Murari, J.
Chunni Lal -Appellant
Versus
Addl. Judge Small Causes Court/Addl. C.J. (S.D.) & Anr. -Respondent
Matters Under Article 227 No. 63 of 2010
Decided On : 24-02-2010
Anwar Hussain
The main legal point established in the judgment is that the court may stay the operation of an impugned order if it finds merit in the submission that there was no new fact brought on record which needed a fresh inspection and report.
Headnote:
Commission - Application for Issuing Commission - The court considered the rejection of the application for issuing a commission, the subsequent recall application, and the trial court's decision to allow the application for issuing a commission. The court found merit in the submission that there was no new fact brought on record which needed a fresh inspection and report, and therefore, stayed the operation of the impugned order.
Fact of the Case:
The defendant-respondent filed an application for issuing a commission, which was initially dismissed, then recalled, and finally allowed by the trial court.
Finding of the Court:
The court found merit in the submission that there was no new fact brought on record which needed a fresh inspection and report, and therefore, stayed the operation of the impugned order.
Issues: The issues revolved around the rejection of the application for issuing a commission, the subsequent recall application, and the trial court's decision to allow the application for issuing a commission.
Ratio Decidendi: The court's decision was influenced by the lack of new facts brought on record that warranted a fresh inspection and report, leading to the stay of the operation of the impugned order.
Final Decision: The court stayed the effect and operation of the impugned order, clarifying that it did not stay the proceedings and allowed the court below to proceed with the disposal of the suit.
Heard learned counsel for the petitioner.
2. Application 81/Ga filed by defendant-respondent for issuing a commission was dismissed vide order dated 26.4.2005 on the ground that Amin commissioner report is already there on record and same has been confirmed subject to evidence. Again, an application dated 9.8.2005 was moved to appoint Vakil commissioner to inspect shop in question and preferably defendant's counsel himself. On the said application, counsel representing plaintiff was appointed as Court commissioner. The plaintiff moved an application for recall of the order which was dismissed, against which he went up in revision which was allowed and the matter was remanded to re-consider the application. The defendant-respondent approached this Court by filing writ petition no. 45391 of 2009 which was dismissed vide order dated 28.8.2009 and no interference was made in the order passed by revisional court in setting aside the order and directing trial court to decide recall application.
3. It is contended that thereafter the trial court has wrongly and illegally vide impugned order dated 5.2.2010 allowed the application for issuing commission without considering that earlier the said application was rejected and there was no such new fact brought on record which needed a fresh inspection and report.
4. Prima facie, there appears to be force in the submission and matter requires scrutiny.
5. Issue notice to respondent no. 2, who may file counter affidavit.
6. Petitioner shall take steps for service of notice on respondent no. 2 by registered post within three weeks.
7. Office shall issue notice returnable at an early date.
8. List for admission after service of notice on respondent no. 2.
9. Meanwhile, considering the facts and circumstances, effect and operation of the impugned order dated 5.2.2010 passed by Judge, Small Causes Court/Additional Civil Judge (Senior Division), Aligarh in Case no. 22 of 2003, Chunni Lal Vs. Balveer, shall remain stayed.
10. However, it is made clear that this order shall not be treated as stay of the proceedings and the court below shall proceed with disposal of the suit.
