•SEREP <? s i;;a^ i '•;-^' fflGHCQEIItTOECHHMltSSARIIATBII.jASfflJR. PETITIONEBL PEAINTIFF RESPONDENT DEFENDANT WRTTEETmON^Io. 61% 6f2004 ' Ramesh.Prasad Gupta : VERSUS .- Dr. RajendraNarayanPa.rida Eost fbrpronQuincement ofthe Judgment andGrderon 2] /Ql/2009 Sd/- Satfsh K. Agnihotri Judge :'iNi:t: :N:11 i;;i! ril l^il: Wl 1]I JL.U.-. HIGHCOURT GF CHHATTISGARH^TBILASEUIt PETITIONER PLAINTIPF RESPONDENT DEFENDANT WRITPETITIONNo. 616 of2004 Ramesh Prasad Gupta S/o Shri Tengri Sao, aged 44 years, resident of Kedarpur Ambikapur District Surguja. VERSUS Dr. Rajendra Narayaa Farida, Ste Shri Haribaadhu Parida, aged about 37 years, residerit of Bhaftipara Road, Kedarpur, Ambikapiir District Surguja(C.G.) PETITION UNDERARTICLE 226/227 OP THE CONSTITUTION OF INDIA SB: Hon'ble ShriSatisU K. Aenihotri.J. Present: Shri SanjayK. Agrawal, Advocate forthe petitioner. Shri V.K.Pandey, Adyoeate for fhe respondent. ,^h. (Passed on .J.i!..dayof January, 2009) This petition filed under Article 1261111 of the Constitution of India assails the validity ofthe order dated 16.02.2004 passed under Order 26 Rule 10 oftheCode of Chdl Procedure,ia08 (fbr sh6rt;'flie CPC') holding that the agplication for , cross examinatiqn of the Commissroner's report under Order 26 Rule 9 of the.CPC, was premature. The facts, in nutshell for proper adjudication of the matter arethat the plaintiff/petitioner filed a civil suit being Civil Suit No.39-A/2003 on 27-6-2003 (Annexure P/l) for permanent injunction on the ground that that he is the title and possession holder of land bearing Khasra No. 1298/24 area 0.016 decimal. The defendaat/respondent is encroaching upon the petitioiier's suit land and Ue may be restrairied accordingly. The defendant/respondent purchased KhasraNo. 1298/32 area 0.033 decimal from Shri Ramji Das Gupta on 21.02.2003.. Thereafiter, the plaintiff also filed an application under Order 39 Rule 1 and 2 of the CPC on 27.6.2003 (Annexure P/2) seeking a relief of temporary injunction. On receiving summons from the trial court, the defendant/respondent appeared and filed his written statement on 07.07.2003 (Annexure P/3) denying all the allegations made in the plaint and filed a counter claim seeking a decree ofpossession &om the plamtiff/'petitioner. The defendanVrespondent, thereafter, replied to the application filed by the plaintiffpetitioner for temporary injunction under Order 39 Rule 1 and 2 oftheCPC on 7.7.2008 (Amiexure P/4). On 31.7.2003, the plamtiff7petitioner filed written statement to the counter claim filed by the respondenVdefendant (Annexure P/5). The defendant/respondent filed an application under order 39 Rule 1 and 2 (Annexure P/6) of the CPC stating that the plaintiff/petitioner has encroached upon the land belonging to the respondent/defendant and the plaintiff/petitioner be restrained from making any constmction over the land in dispute and thereafter, the respondent/defendant also filed an appliGation under order 26 Rule 9 (Annexure P/7) for appointment of a local Commissioner to ascertain the actual position ofthe suit land. The said application was allowed by fhe Trial Court by order dated 6.8.2003. Thereafter, the Commissioner submitted his report on 9.1.2004 (Annexure P/8). The plaintiff/petitioner raised an objection fo the report submitted by the Commissioner stating fhat the Commissioner was not present in person on the spot verification ofthe T suit land on 20-12-2003 (Annexure P/9) and filed an application under Order26 Rule 10 ofthe CPC forcross examination ofthe Commissioner. The respondenVdefendant filed his reply to the said application objecting the grounds taken by the plaintiff/petitioner for cross examination the Commissioner (Annexure P/10). The learned trial Court, vide its order dated 16-02-2004 (Annexure P/11) rejected the application filed by the plaintiff/petitioner holding that the application filed under Order 26 Rule 10 of the CPC questioning the report of the Commissioner under order 26, Rule 9 of the CPC, was premature. Hence, this petition. 5) Shri Sanjay K. Agrawal, learned counsel appearing for the petitioner submits that the Commissioner appointed by the court under Order 26 Rule 9 of the CPC submitted the report on 19-1-2004, but the plaintiff/petitioner field an objection under Order 26 Rule 10 of the CPC for cross examination of the Commissioner pleading that the demarcation done was not in accordance with the direction by the trial Court. The demareation was done subsequently not on the due date. Thus, the plaintiff/petitioner may be permitted to cross examine the Commissioner. The trial Court by its order dated 16-2-2004 (Annexure P/11) rejected the application/objection of the petitioner on the ground that the only inspection report has been filed and the application/objection filed by the plaintiff/petitioner was pre-mature. Mr. Agrawal would further submit that while considering the apptication for grant of temporary injunction, the said report is taken as the basis in respect of the factual matrix of the case. Unless opportunity is afforded to the petitioner to cross examine the Commissioner, the report cannot be relied upon, which is doubtful. 6) Per contra, Shri V.K. Pandey, learned counsel appearing for the respondent/defendant supports the impugned judgment and order. Mr. Pandey would further submit that at the time of hearing of the application under Order 39, Rule 1 and 2 of the CPC, requirement is a prima facie case, balance of convenience and irreparable loss. The cross examination of the Commissioner was not declined, but it was held to be permissible at the time of hearing of the case. Mr. Pandey, would further submit that the petitioner/plaintiff was present at the time of the demarcation of the land, but later on he refused to put his signature on panchnama. 7) I have heard learned counsel appearing for the parties, perused the records and documents appended thereto. It is a trite law that the interim application for grant of interim relief under Order 39, Rule 1 and 2 of the CPC has to be considered on the basis of prima facie case, balance of convenience and irreparable loss to the parties. If the court relies on any report submitted by the Commissioner, the plaintiff/petitioner has every right to cross examine the Commissioner before the report is taken on record and reliance is made on the said report. It appears that the plaintiff/petitioner is making reliance on the report, which is under objection by the plaintiff/petitioner and the same cannot be done even for the purpose of deciding the application under Order39, Rute1 and 2 ofthe CPC. 8) The contention of the learned counsel appearing for the respondent/defendant that examining the report at the stage of grant of interim relief tantamounts to entering into merits of the case, is not sustainable in law. If the trial court decides the application for grant of interim relief on the basis of the report, the said report has to be examined, objection raised, if any, has to be considered before relying on the report at the preliminarystage i.e., at the time of grant of interim relief or thereafter. ,.-^ 9) In view of the well settled principles of law, 1 am of the considered view that the objection/application made by the plaintiff/petitioner to the report has to be considered and if the petitioner/plaintiff makes an apptication to cross examirie the Commissioner, in that case, the request cannot be turned down, particularly in view of the fact that the trial Court by considering the application for interim relief is relying on the said report. The repbrt eannot be relied upon before proper examination and if there is any application for cross examination of the Commissioner, that cannot be refused. 10) In view of the above observations, the impugned order dated 16-2-2004 (Annexure P/11) is set aside and the petition is allowed. No order asto i Satish K. Agnihotri Judge ; iAmit/raju