/!- HIGH COyRT,OFCHHATTISGARHl81LASPUR Wrlt Petition (227) No. 4012 of Petitloner Anli Kumar Dubey, S/o. Shri Girija Prasad Dubey, Pialntlff • aged about 33 years, R/o.. Old Bus Stend, Amblkapur, District Surguja (CG) . through its Power of Attorney holder Vlnay Kumar Dubey, S/o. Adya Prssad Dubey, aged about 50 years, r/'o. Old 8us Stand Kharsla Chowk, Amblkapur, Distrlct Surguja (CG). Respondents/ Defendants Versus 1) Smt. Shanti Tripathl, W/o. Rajaram Tnpathl, aged at present about SO years, r/o. Shivrajpur, Post Shivrajpur, Tahsil Biliore, DJstrict Kanpur (UP). 2) Sardar Resham Slngh, S/o. Late Shri Sardar Bhagat Singh, aged at present about 48 years, r/c. Oid Bus Stand, Hotel Punbaj, Bus Stand Ambikapur, Poilce Statlon & Tahsil Ambikapur, District Surguja (CG). (Wrlt Petltion undsr Articie 227 of Constitutlon of India) 5B: Hon'bie MT. Satish K. Agnihotri, -J. Present: !v1r. VaJbhav-G.overdhan.counsel . for the petItioneL. Vr, Pusti, counsel for the respondents ORAL (Passed on this 4 day of February, 29*39) Sy this petltlon iled under Artlcie 227 of ths Constltution of Indla, the petltloner/piaintiff seeks to chailenge the legallty and vaildlty of the order dated 5-3-2008 (Annexure P/1) passed In Civil Suit No.2-A/200S (new No. 7A/2008} (Anil Kumar Dubey Vs. Smt. Shanti Tripathl and another), whereby the 2nd Addltionai District Judge, Amblkapur, Dlsirict Sarguja. in an appijcatlon fsled by the respondent No.2 under Order 26 Ruie 9 of the Code of Civ'il Procedure, 1908 (for short, "CPC"), ordered to appolnt a Commlssioner to verify the possesslon ofthe plalnt scheduie land. 2) The brief fads, in nutshell, as projected by the petltioner are that the petltioner/pialntlff flle" a clvli sult for speclfic performance Jn the court of 2 Addltiona! .Dlstrict Judge, Amblkapur, District Sarguja in 2008. Written statement '2-- Th,^ was bv the respondents and denied the contentions of the Dlaintlff. The respondent No.2 flied an appllcatjon Order 2S Ruie 9 ofthe CPC for appointment of a Conimlssloner for spot inspection. wlth regard to the possession of the property In respect of tne petltion schedule land. The 2"- Additional District Judge, Ambikapur, Dlstrict Sarguja, by the Impugned order dated 5-3-2008 aliowed the appiication partly by appointlng a Commjs^loner for spot inspectlon In respect of the present status of the possession on the petltion scheduie iand. Thus, thls petltlon by the petltloner on the around that the order dated 5-3-2008 (Annexure P/1) passed by the 2nd Additionai Dlstrict Judge, Ambikapur, In an ,app!lcation 'flled under Order 2S Ruie 9 of the CPC, where prlma facle, flndlng wlth regard to the possesslon of the property has been given, operates as re^ judlcata. Thus, no order ought •to have been passed In subsequent appllcation filed ynder Order 25 Rule 9 ofthe CPC. 3) Mr. Vaibhav Goverdhan, tearned counsel appearing for the petltioner submits that the Cornmissioner cannot be appolrsted to collect evid'ence in regard to possession of the property and the Court ought to have declded the possession by proper evldence and documents. 4) Nr. Ratara Pusti, iearned counsel appearing for the respondents suppo'rts the imDugned order passed by thc Court beiow. 5) I have heard learned counsel appearing for the partles, perused tie pieadlngs and documents appended thereto. S) Lavv with regard to aDOolntment of a cominlssion Is ciear. The commlssion can be appolnted only for the purpose of eiucldatlng atiy matter In dlspute, or of ascertalnlng the market-value of any property, or the amoynt of any mesne pro'flts or damages or annual net profits, not for the pyrpose of recording the flnding cn the basls of commisslon's report. ^.w.::^ Sj ^S^ 1 ——•Ij ^ ".. %^/ /) 1 the matter of Prsaa Tools Corporation Ud. vs. Mahboobunnissa (Smt) and oihers , Hon'ble the Supreme Court observed as under: "12........The triai Court may have appolnted a Commissioner to carr^. out sur^ey but ultimately the findings had to be recorded by the trial Court. .The report of the Commissioner couid oniy be an aid to the triai court Jn arriving at its findings. The trial court has aiiowed parties to iead orai as yvell as documeratary' evldence. The triai court has compiied with the directions of this Court"« 8) I am of the considered oplnlon that the Commissioner Is normaljy not appointed to Improve case of one party in adjudjcatjon of the pendjng suit. Even otherwise, the Commissjoner shouid be appointed in cases where It is not possibie to ascertain the facts cn the basis of evidences and documents producecj.by the parties. Thus, the order of appolntment of the Commissloner may be for the purpose of spot inspection only, not for the purpose of recordlng finding as conciusive. The same has to be considered after examining proper evidence and documents produced by the partles. S) In vievv of the foregoing, the impugned order Is modified to the above extent. Accordingly, the pstltion is partiy ailov/ed. No order asto costs. Sd/- Satish K. Agnihotri Judge Raju 1(2001)6SCC238