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R.C. Lahoti, J.
Padamchand v. Munshilal
S.A. No. 28 of 1990 (G); Decided on 2.11.1993.
(2) Civil P.C., 1908 -- O. 18 R. 18 and O. 26 R. 9 -- application for spot inspection filed at argument stage -- no ambiguity left in evidence -- spot inspection rightly declined.
(3) Civil P.C., 1908 -- S. 100 -- genuine necessity -- is a question of fact.
¼1½ flfoy Áfdz;k lafgrk] 1908 & vk- 6 fu- 5 & oknh ds dCts esa nqdku ds vkdkj ds iz‘u ij lk{; igys gh vfHkfyf[kr & csgrj fof‘kf"V;k¡ iznk; dh tkuk vko‘;d ugha gSA
¼2½ flfoy Áfdz;k lafgrk] 1908 & vk- 18 fu- 18 rFkk vk- 26 fu- 9 & LFky fujh{k.k ds fy, vkosnu cgl ds izdze ij Qkby fd;k x;k & lk{; esa dksbZ lafnX/kkFkZrk ugha NksM+h xbZ & LFky fujh{k.k ls Bhd bUdkj fd;k x;kA
¼3½ flfoy Áfdz;k lafgrk] 1908 & /kkjk 100 & okLrfod vko‘;drk & rF; dk iz‘u gSA
Application under Order 6 Rule 5 C.P.C. was filed on 7.2.1983 by the defendant seeking direction to the plaintiff to supply the dimensions of the shop in his possession as also a map thereof. Vide order dated 7.2.1983, this application has been rejected by the trial Court stating that the application was moved after the commencement of the evidence and when the dimensions of the shop in question of the plaintiff had already been brought on record, in evidence. Thereafter, more evidence has been adduced. Both the parties are well aware of the dimensions of the shop in possession of the plaintiff. As such, the particulars were uncalled for. Certainly, no grievance can be permitted to be made at the stage of second appeal.
An application under Order 26 Rule 9 C.P.C. seeking inspection of the suit shop and the accommodation in possession of the plaintiff was filed by the defendant when the trial was over and the case was at the stage of final arguments before the trial Court. The reason stated in the application was to enable the Court to make the better appreciation of the facts. The trial Court vide its order dated 4.1.1984 rejected the defendant's application stating that there was no such ambiguity left in the evidence as required spot being inspected by the Court.
The reasons assigned by the trial Court for rejecting the two applications have been re-affirmed by the lower appellate Court as well. It cannot be said that the defendant/appellant has been prejudiced in any manner whatsoever by the rejection of the two applications. The merits of the judgment under appeal have not been at all affected adversely by the rejection of the two applications. The finding as to genuine requirement of the landlord is a finding of fact, ordinarily not open to interference in second appeal, by the High Court as held by their Lordships of the Supreme Court in Sarvate T.B. v. Nemichand (1965 JLJ 973). Appeal dismissed.
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