In the High Court of Chhattisgarh, Bilaspur WP (227) - xxokx /2010 Petitioner / Péazvw V L‘ / Smt. Usha Tiwari, Age 56 Yrs., w/o HD. Tiwari, R/o 23 - Sunder Nagar, Oppo. Dubey Provision Store, Raipur Versus / 1. Shri Ravinder Singh, S/o Shri Inder Singh, R/o Gurunanak Nagar, ‘J/ Telibandha, Raipur ' a Amrit Sales, Railway Station ROad, Opposite Barkha Hotel, Raipur ’ . Ramesh Mangwani, R/o Lakhani Shoes Centre, Ganeshrarn Nagar, Raipur Petition Under Art. 227 of the Constitution of India Respondents / Defendants i J: x3 HIGH COURT OF CHHATTISGARH AT BILASPUR $inule Bench: Hon‘bie Shri Justice Prashant Kumar Mishra Writ Petition {227) No=3104 !2010 9ETmONER Smt. Usha Tiwari Versus RESPONDENTS Shri Ravinder Singh and another, Shri Raja Shanna, caumel fer the petitioner. Shri Sourabh Dangi, counset for the respondent No.1. None for respondent No.2, though served, WRIT PETlTiON UNDER ART!GLE 227 OF THE CONSTHUTION OF INDIA ORAL ORDER (09.09.2o1o) The matter is heard fmally at motian stage with the wnsent crf Tgamed munsel far the parties. (2) The petitioner/plaintiff is aggrieved by the order passed by the ma! Court on 27‘“ ApriL 2010 directing the parties to get the land demarcated and submit a repert regarding the suit iand. (3) The petitienerlpiaintiff has preferred the suit fer permanent injunction in restrain the defendants frem raising any construction on the suit iand and tc interfere in her possession. According to the piaintitf she is the owner of iand bearing Piot No.8—82, Khasra No. 708, Shankar Neger. Raipur having purchased the same from the Gayatri Grin Nirman Cooperative Society, however the defendant No.1 started ' storing materiais tor raising construction and oiaiming that the iand belongs to him. iii/”r 1‘4) The respondent Not/defendant No.1 is denying the piaint aiiegation and stated that he is raising construction on his own iand. J\ -1, f0 (§) Both the parties have ‘ed evidence in the euit and have dosed their evidence. {6) Fmm the order-sheet of the tria! Court it weutd appear that the eatendant Actosed his evidence an 06‘“ Aprit, 2010. The matter was hearct finatty Sn part by the tria! Court on 19‘“ April, 2016 and the fma! hearing was concluded on 26" ApriL 2G10. The suit was posted for ,iudgment on 27‘“ Aprtt, 2010, but on the said date i.e. on 2?“ April, 2G“) the impugned order came to be passed by the triai Court. tt has been stated in the impugned order that after perusai of the pleadinge, and evidence adduced by the partiee it would appear that the dispute is; about the position of the land, however both the parties have failed to eubmit any demarcation report in the absence of which the suit cannot he decided. The trial Court has therefore directed the parties to get the tend demarcated and submit a report. Parties were given liberty to get the Commissioner appointed by the Court for demaroation. i?) Counsel for the petitioner has argued that when the matter was ciosed for judgment the teamed trial Court should not have passed the order directing the parties to move an appiication for issuance of commission to make local investigation. He would suhmit that the order suffers from serious error in exercise of jurisdiction. (a) On the other hand ccunsei for the respondent Not would submit that the triat Court has aii the powers and jurisdiction to order for icsuance of commission to make iocal investigation so as to adjudicate the matter when it feets that such demarcation is necessary. t (‘9) On perusai cf the Meading it woutd appear that bath the partie$ have pieaded their respective caSes in the plaint and in the written statement. The defendant, in paragraph 11 of the written statement has stated that he has got the land demareeted from Tahsiider, Raipur and shalt submit the report as soon as the certified copy is made evaiiabie to him. The written statement was fiied en or about 12‘“ March, 2007. Defendante' evidence was ciesed on 08-04—201 O. in course of triai neither the plaintiff nor the defendants made any effort t0 get the land demarcated of their own or by moving the Ceurt for appointment of Commissioner to make local investigation. The Court, while trying the suit is ordinarily not supposed to direct the parties to move in a particular manner and oolleot evidence when the parties . have failed to do so in course of trial. The trial Court is supposed to decide the suit on the basis of evidenoe adduced by both the parties and if one or the other parties have not been able to prove his case the consequences in law would ensues lt is all the more improper for the Eourt toreopen the case when the matter was heard finally and the iudgment was to be delivered and directing the parties to move an applioation for demarcation‘ Even it the Court has iurisdiotion under Order 2.6 of C.P.C‘ for issuance of commission, the trial Court should exercise the same at a reasonabie time on appiioation moved by one of the parties or if it finds that it is necessary, however exercise of power on the date when the Court is supposed to deliver the judgment is not proper. k ‘ V i t 0}. tn the matter of 3.3. Nazir Hassan Khan vs. Aswathanarayana Eat) and others reported in AIR 2004 Kamafaka 92, it has been held that a. prayer for appointment of Commissioner under Order 26 Rule 9 (7 af C.P.C. cannct be cansidered at a belated stage, when evidence is compiete and ca$e is fixed for arguments. In that case the trial Court had rejected the apmication fer appointment of Commissioner fiied by one ef the parties to the suit when the matter was tixed for fmai argument. The judgment further observed that even if the prayer is eonafide and genuine it has t0 be flied at a proper point at time in the preceedings because attcwing the prayer for issuance of Commission at the tag end of the suit woutd reopen the suit and treeh evidence will have te be recorded and ail the procedures from that etage atways woutd again have to be reoommenoed. .4_ :11 ’i) The impugned order suffere from eerioue error of jurisdiction and» it has been paseed with materiai irregutarity which needs to be corrected by this Court in exercise of power under Articie 227 of the ‘i €onst’rtution of india. (12) in the resuit, the petition succeeds and is aiiowed. The impugned order is set-aside. Sd/- Prashant Kumar Mishra Judge