1 10 S.B. CIVIL WRIT PETITION NO.5393/2006. Narain & Ors. Vs. Roopa Ram & Anr. Date of Order :: 16th May 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. K.C. Samdariya, for the petitioners. None present for the respondents. ..... BY THE COURT: This writ petition is directed against the order dated 28.08.2006 (Annex. 7) as passed by the Civil Judge (Junior Division), Jaitaran, District Pali in Civil Original Suit No. 108/1996 (39/1994) rejecting the application dated 08.12.2005 (Annex. 5) as moved by the defendants-petitioners taking objection against recording of the statements of the Commissioner, who had inspected the site in dispute during the course of supplemental proceedings. Show cause notice was issued in this writ petition on 20.09.2006; and, after appearance of the respondent, the record was requisitioned on 06.10.2006. Thereafter, on 24.11.2006, for nobody appearing to oppose the admission, this writ petition was admitted for consideration. The matter has been placed toady for orders on stay application. Learned counsel Mr. K.C. Samdariya appearing 2 for the petitioners in the first place submitted that the record of the suit proceedings having already been received in this writ petition, there is no necessity as such for the petitioners to press for the interim relief of staying further proceedings in the related civil suit; however, upon this Court expressing reservations on the proposition as suggested and pointing out that instead of retaining, the record may be returned to the Trial Court for further proceedings particularly when the suit has been filed as back as in the year 1994, learned counsel made submissions on merits of the case. Learned counsel strenuously contended that in view of the order dated 29.07.1997 (Annex. 4) as passed by this Court in S.B. Civil Revision Petition No. 798/1994 whereby the Commissioner's report was pronounced relevant only for the limited purpose of disposal of the application for temporary injunction, such report is not of relevance any further and cannot be used for determination of the questions involved in the main suit; and the learned Trial Court has acted illegally in rejecting the application submitted by the petitioners. The submissions as made on behalf of the petitioners turn out to be bereft of substance on a bare look at the order dated 29.07.1997 as passed by this Court in S.B. Civil Revision Petition No. 798/1994. The aforesaid revision petition was considered by this 3 Court in the circumstances that while dealing with the application for temporary injunction in this very suit, the Trial Court appointed a Commissioner who visited the site in dispute on 04.03.1994 and submitted his report; the defendants-petitioners moved an application for appointment of another Commissioner for site inspection with the grievance that the previously appointed Commissioner did not inspect the site in their presence; but the learned Trial Court rejected such application on the considerations that the petitioners did not avail of the opportunity to challenge the correctness of the Commissioner’s report nor did they point out any anomaly or deficiency or wrong mentioning of facts in such report. After observing that no case was made out for issuance of a commission afresh; and also that even when no notice was served on the defendants, the same does not appear resulting in any miscarriage of justice, this Court permitted the defendants to file written statement and reply to the application for temporary injunction and extended them liberty to raise all the objections that were thought relevant and advisable in challenge to the report of the site Commissioner duly supported by the material; and the learned Trial Court was left free to give proper thought to the report as well as the material, if any, along with the reply filed to the application and if the circumstances so warrant, to direct further inquiry to 4 be made at the site as deemed proper so as find out the truthful state of affairs prevalent at the site at the relevant time. Thereafter, this Court proceeded to clarify: “However, it is further clarified that the report so submitted by the Commissioner shall not be directly admissible as evidence unless the Commissioner is examined on behalf of either party during the hearing of the main suit itself and the same shall be relevant and taken into consideration for the limited purpose for disposal of the application of the plaintiff moved for issuance of the temporary injunction, if any, against the defendants.” (underlining supplied for emphasis) The said Commissioner who has submitted the report to the Court is now sought to be examined in rebuttal evidence by the plaintiff and his affidavit-in-evidence has already been filed before the court. The learned Trial Court, in a proper comprehension of the aforesaid order passed by this Court and with reference to the facts available on record, found examination of the Commissioner in evidence unexceptionable and at the same time has observed that the legality of the evidence of the Commissioner shall be considered only at the time of decision of the suit. The interpretation as sought to be put by the petitioners on the order passed by this Court on 29.07.1997 cannot be countenanced. Noteworthy it is that on the relevant date, i.e., 29.07.1997, the hearing in the suit had not commenced and it 5 is noticed from the record that the issues in this suit were framed only on 29.07.1999. The observations as made in the concluding lines of the passage reproduced above that the Commissioner's report would be taken into consideration only for the limited purpose of disposal of the application for temporary injunction are required to be visualized with reference to the relevant fact that at the particular point of time and stage, hearing in the suit had not commenced and the matter was being processed and considered only in relation to the application for temporary injunction. Moreover, by the order dated 29.07.1997, this Court has not put a bar on the said report of the Commissioner being adduced as evidence in the hearing of the main suit; but, in the opening lines of the passage, as emphasized hereinabove, this Court made it clear that the report so submitted by the Commissioner would not be directly admissible in evidence unless the Commissioner would be examined by either party during the hearing of the main suit. Now, when the Commissioner is sought to be examined by the plaintiffs in the hearing of the main suit, the objection as taken by the defendants-petitioners only with reference to a part of the observations made by this Court but detached from the other part of observations and de hors the context, could only have been rejected. 6 Having examined the matter in its totality, this Court is satisfied that the learned Trial Court has not committed any jurisdictional error in rejecting the objection of the petitioners against examination of the said Commissioner with the observations the legality of the evidence of the Commissioner shall be considered at the time of decision of the suit; and the impugned order cannot be said to be leading to substantial failure of justice so as to warrant interference in writ jurisdiction. The aforesaid being only the submissions made on behalf of the defendant-petitioner and the same having been found untenable, this Court is clearly of opinion that this writ petition deserves to be dismissed on merits at this stage itself. The writ petition is, therefore, dismissed. Nobody having appeared for the respondent, there shall be no order as to costs. Record be returned immediately. (DINESH MAHESHWARI), J. Mohan/