C.R.No.6307 of 2010 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.6307 of 2010 Date of decision:28.9.2010 Vijay Kumar ...Petitioner vs Gurbachan Kaur ....Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.S.P.Garg, Advocate, for the petitioner. -- Rakesh Kumar Garg,J. This is plaintiff's revision petition challenging the impugned order dated 8.9.2010 passed by Civil Judge (Junior Division),Barnala, whereby his application for appointment of Local Commissioner, in a suit for recovery on the basis of an agreement to sell, has been rejected. As per the averments made in this petition, the respondent executed an agreement to sell with respect to 8 biswas of land bearing khasra No.72//11/2/2 (0-8) and received a sum of Rs.4,50,000/- as earnest money. However, the petitioner came to know that the agreement to sell was not capable of being executed, as the land as specified in the agreement to sell, was falling within a street, and the same could not be transferred in the name of the petitioner. Hence the suit for recovery. The aforesaid suit is being contested by the defendant- respondent by taking up the plea that the agreement to sell is capable of being executed. C.R.No.6307 of 2010 2 On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the defendant entered into an agreement to sell and received earnest money, as claimed ?OPP 2. Whether the plaintiff is entitled to recover the suit amount along with interest, as alleged ?OPP 3. Whether the plaintiff is estopped by his act and conduct from filing the suit ?OPD 4. Whether the plaintiff has got no locus standi and cause of action to file the present suit ?OPD 5. Whether the suit is not maintainable in the present form ? OPD During the hearing of the suit, the petitioner moved an application for demarcation of the property in dispute and to inspect the site to ascertain whether khasra No.72//11/2/2 (0-8) exists. While rejecting the prayer of the petitioner, the trial Court observed as under:- “ After hearing arguments of both the sides and going through the case file carefully, this court is of the opinion that the present application has been filed just to delay the proceedings of the case and that too at the highly belated stage, because the defendant had filed written statements in this case on 5.10.2007 and in para No.1 of the written statement, defendant had specifically stated that on the basis of Farad Badar, khasra Number 72//11/2/2 (0-8) has been changed to khasra No.72//11/2/1/2 (0-8) and this fact was well within knowledge of the plaintiff since 5.10.2007 and the present application has been filed on 21.7.2000, when the case was fixed for rebuttal evidence of the plaintiff. Hence, in the opinion of the Court there remains no dispute qua the identity or existence of the disputed property. In the opinion of the Court the local commissioner cannot be appointed, at a highly belated stage for ascertaining the identity of the suit property in this case. Moreover, the local commissioner cannot be appointed to fish out evidence for any party. It is also C.R.No.6307 of 2010 3 worth mentioning here that after closure of evidence of the defendant, the case was fixed for rebuttal evidence and plaintiff has availed opportunities and he can rebut the evidence of the defendant in his rebuttal evidence.” I have heard the learned counsel for the petitioner and perused the impugned order and the averments made in this petition. The case is fixed for rebuttal evidence of the plaintiff. The defendant-respondent had filed the written statement on 5.10.2007 submitting therein that on the basis of a Farad Badar, khasra No.72//11/2/2 (0-8) has been changed to khasra No.72//11/2/1/2 (0-8). Thus, there is no dispute regarding the existence and identity of the property in dispute. Even otherwise, the present application has been filed on 21.7.2010 at the fag end of the trial and at a belated stage. Moreover, it is a suit for recovery on the basis of an agreement to sell. Even from perusing of the issues framed it cannot be made out that the appointment of local commissioner will, in any manner, felicitate the adjudication of the dispute in a more effective manner, as the suit is for recovery of the amount as per the agreement in question. It is well settled that the Local Commissioner cannot be appointed to collect evidence on behalf of a party. For the reasons recorded above, I find no merit in this petition and the same is dismissed. ( Rakesh Kumar Garg) Judge September 28, 2010 rk