Point of Law : Court cannot prevent a party from adducing best evidence if such evidence can be gathered with the help of commission.

JUDGMENT :

1. Heard learned counsel for petitioner and learned counsel appearing on behalf of opposite party No.2.

2. Petition under Article 227 of Constitution of India has been filed assailing order dated 10th January, 2018 passed by trial court rejecting petitioner's application for issue of commission under Order 26 Rule 9 of the Code of Civil Procedure as well as order dated 31st January, 2020 passed by revisional court dismissing the revision.

3. The limited question of law requiring adjudication in the present petition is whether the court below was justified in rejecting the application filed by petitioner-plaintiff for issuance of commission in a suit for cancellation of sale deed and permanent injunction.

4. Learned counsel for petitioner submits that the aforesaid suit had been filed for cancellation of sale deed and permanent injunction with regard to immovable property in which both the plaintiff as well as defendant claimed possession over property in dispute. Under an apprehension that status quo would be changed by the defendants, the petitioner-plaintiff was constrained to file application for issuance of commission under Order 26 Rule 9 read with Section 151 CPC on 2nd August, 2016. The same was rejected by means of detailed order dated 25th September, 2017, which became final since no revision there against was effected. It is submitted that subsequently in view of a fresh apprehension on the part of plaintiff a subsequent application under Order 26 Rule 9 read with Section 151 C.P.C. was filed on 14th November, 2017 which has been rejected by means of impugned orders.

5. Learned counsel for petitioner submits that the courts below have erred in rejecting the application for issuance of commission in view of the fact that the suit was not only for cancellation of sale deed but for permanent injunction as well and therefore it was incumbent upon the court concerned to have indicated the status of parties as on the date on which the application was being made so as to prevent any future change at the spot. It is submitted that the trial court as well as revisional court have misdirected themselves in rejecting the application primarily on the ground that earlier as well application for issuance of commission at the behest of plaintiff had been rejected on 25th September, 2017. It is thus submitted that the impugned order dated 10th January, 2018 is ineffective and non speaking order. Learned counsel has placed reliance on the judgment rendered by co-ordinate Bench of this court in the case of New Meena Sahkari Awas Samiti Limited through its president Versus Additional District Judge, Lucknow passed in Misc. Single No. 2267 of 2012 to buttress his submissions to the effect that the court can not prevent a party from adducing best evidence, if such evidence can be gathered with the help of commission.

6. Learned counsel appearing on behalf of opposite party No.2 has refuted submissions advanced by learned counsel for petitioner with submission that orders impugned are in consonance with settled law and do not warrant any inference particularly in view of the fact that the suit was primarily for cancellation of sale deed in which there is no occasion for determination of actual spot condition by issuance of commission. It is submitted that there is no error in the order dated 10th January, 2018 which has been rejected primarily on account of the fact that second application for issuance of commission under Order 26 Rule 9 C.P.C. has been filed although the first one had already been rejected on 25th September, 2017, which became final since the same was not contested.

7. Learned counsel has in turn placed reliance on a judgment rendered by another coordinate bench of this Court in the case of Radhey Ahyam and another Versus Additional District Judge and others reported in 2011 (2) CRC 469 to buttress his submission that purpose of appointing commission is not to fill a lacuna in pleadings or to find out some evidence i