HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. : 405 of 2010 Decided on: 1.3.2011 Charan Dass ……… Petitioner. Versus Madan Mohan alias Madan Lal ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the petitioner: Mr.G.D. Verma, Senior Advocate, with Mr.B.C. Verma, Advocate. For the respondent: Mr.N.K. Thakur, Advocate. V.K. Ahuja, J.(Oral): This is a petition under Article 227 of the Constitution of India filed by the petitioner against the order passed by the learned trial Court, dated 30.9.2010, vide which the application filed by the present petitioner (plaintiff before the learned trial Court) under Section 151 CPC for permission to take the samples of constructed portion raised by the respondent/defendant, as explained in the pleadings, was dismissed. 2. I have heard the learned counsel for the parties and have gone through the record of the case. 3. A perusal of the record shows that earlier an application under Order 26 Rule 9 for appointment of an expert in regard to the construction raised by the defendant was filed and the said application was dismissed by the learned trial Court, which order was upheld by this Court also. A perusal of the impugned order shows that it has been observed by the learned trial Court that the perusal of the ingredients of the earlier application and the present - 2 - application shows that they are identical and it cannot sit over the order of the High Court. 4. Keeping in view the fact that the previous application was disallowed and the fact that it was for the plaintiff/petitioner to produce an expert in his evidence by taking him to the spot and getting the age of the construction determined from him and prove the same in accordance with law, the impugned order calls for no interference by this Court. There is no question of allowing an application filed by the petitioner to lift the sample and send it to an expert for determination of the age of the building, which is to be determined by oral evidence to be led by the plaintiff coupled with the statement of any expert that may be taken by the plaintiff to the spot. Therefore, the impugned order does not suffer from any illegality and calls for no interference. 5. However, in case the evidence of the plaintiff has already been closed in affirmative and he intends to take any expert to the spot, it is for him to take the said expert to the spot, get the building examined from him and produce the expert in his evidence. For that purpose, he is at liberty to apply to the learned trial Court for additional evidence, which application shall be considered by the learned trial Court in view of the observations made above and according to law. In case there is any objection raised by the respondent/defendant to the examination of the expert at the spot and there is some resistance, it is for the learned trial Court to pass appropriate orders. However, it will be suffice to observe that the defendant shall not raise - 3 - any objection to the examination of the building existing at the spot. 6. With these observations, the present petition is dismissed. The parties, through their counsel, are directed to put up appearance before the learned trial Court on 11.4.2011. The Registry is directed to send the records of the case alongwith a copy of this judgment to the learned trial Court, so as to reach there well before the date fixed. 7. The petition stands disposed of accordingly, so also the pending application(s), if any. March 1, 2011. (V.K. Ahuja), (tilak) Judge