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2015 Supreme(All) 2726
ALLAHABAD HIGH COURT
Manoj Kumar Gupta, J.
Abrarul Haq - Appellant
Versus
Mohammad Noor Hasan And 10 Others - Respondent
Matters Under Article 227 No. 4499 of 2015
Decided On : 25-08-2015
For the Petitioner: Sanjay Maurya.
For the Respondent: Tarun Varma.
The court has the discretion to reject an application for issuing a Survey Commissioner if it deems it unnecessary, especially when there is no dispute regarding the identity of the suit property.
Headnote:
Survey Commissioner - Property Dispute - The court rejected the petitioner's application for issuing a Survey Commissioner, stating that there was no dispute regarding the identity of the suit property before the trial court and that the issuance of the Survey Commissioner at the appellate stage was not necessary.
Fact of the Case:
The petitioner filed a petition challenging the order rejecting the application for issuing a Survey Commissioner during the pendency of the appeal.
Finding of the Court:
The court declined to intervene at this stage, considering the order impugned as purely interlocutory, and granted the petitioner the liberty to challenge the impugned order along with the final judgment passed by the appellate court.
Issues: Challenge to the rejection of the application for issuing a Survey Commissioner during the pendency of the appeal.
Ratio Decidendi: The court found that there was no dispute regarding the identity of the suit property before the trial court and that the issuance of the Survey Commissioner at the appellate stage was not necessary.
Final Decision: The petition was dismissed with the liberty granted to the petitioner to challenge the impugned order along with the final judgment passed by the appellate court.
Manoj Kumar Gupta,J.
Heard learned counsel for the petitioner and Sri Tarun Varma, learned counsel appearing on behalf of the defendant/opposite parties.
2. The petitioner has filed the instant petition under Article 227 of the Constitution challenging the order dated 23.9.2014 passed by the Additional District Judge, Gorakhpur in Civil Appeal No.43 of 2013 rejecting the application 16-Ga filed by the petitioner for issuing a Survey Commissioner.
3. It appears from the record that during the pendency of the appeal, the petitioner filed the application 16-Ga for issuing a commission for getting the property surveyed. The application has been rejected by the lower appellate court after recording a specific finding that before the trial court, there was no dispute regarding the identity of the suit property. Even no issue was framed before the trial court as to whether the suit property is part of plot no. 150 or not. In such view of the matter, the lower appellate court was of the opinion that the issuance of the Survey Commissioner, that too, at the appellate stage was not necessary.
4. After hearing learned counsel for the petitioner, this Court does not consider it proper to intervene at this stage, as the order impugned is purely an interlocutory order. In case the appeal is decided against the petitioner, it shall be open to him to challenge the impugned order alongwith the final judgement passed by the appellate court.
With the aforesaid liberty, this petition is dismissed.
