1 S.B.CIVIL WRIT PETITION NO.11002/2010 Jayanti Lal Vs. State & Anr. DATED: 10th December 2010 HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.Pritam Solanki for the petitioner Mr.Manoj Bohra for the respondent No.2. BY THE COURT: Though notices are said to be awaited but the learned counsel Mr.Manoj Bohra has put in appearance for the respondent No.2, said to be the contesting respondent. Having regard to the circumstances, the matter has been heard finally at this stage itself. By way of this writ petition, the plaintiff-petitioner seeks to question the order dated 12.11.2010 whereby the learned Trial Court has issued a commission and has directed the Commissioner to inspect the site in the presence of both the parties. It is submitted on behalf of the petitioner that his evidence has been completed in the trial and, thereafter, the defendant moved such an application only in order to create complications in the matter and rather, for collecting evidence for itself. It is submitted that a commission cannot be issued for the purpose of collection of evidence on behalf of a party to the litigation. The learned counsel for the petitioner has referred to and relied upon the decisions in Munshi Vs. Tejvir: 2005 (4) RLW 2367 and Union of India & Anr. Vs. M/s. Kripal Industries Raisingh Nagar: 1998(1) RLR 123. The learned counsel for the respondent No.2 has duly supported the order impugned. 2 Having heard the learned counsel for the parties and having perused the material placed on record with reference to the law applicable, this Court is not persuaded to consider interference in the impugned order dated 12.11.2010 whereby the learned Trial Court has issued a commission for site inspection. There is no quarrel with the principles applied by this Court in the decisions cited by the learned counsel for the petitioner that the power of appointment of Commissioner for local investigation cannot be exercised by the Court in order to assist a party to collect evidence where the party could adduce the evidence itself; and, where the oral and documentary evidence is sufficient to resolve the dispute, the prayer for appointment of Commissioner could be declined. However, it is noticed from the material placed on record that according to the defendant, the plaintiff raised the disputed construction during currency of the stay order with encroachment on the government land; and prayer has been made for the report on the present position of construction with its dimensions and photographs. It further appears that the application for issuance of commission for local investigation was made on behalf of the defendant even before cross-examination of the plaintiff’s witness PW-1 on 26.03.2010 but then, the learned Trial Court directed the defendant to proceed with the cross-examination and hence, the cross-examination was completed. Thereafter, if the learned Trial Court has found it in the interest of justice that the report be obtained from the Commissioner of the position obtainable at site, the order cannot be said to be suffering from any such jurisdictional error as to warrant interference in the writ jurisdiction. In the totality of 3 circumstances, the order impugned subserves the cause of justice and calls for no interference. However, when it is noticed that the application has been allowed only after the plaintiff’s evidence and the Trial Court has not made any other observation in the impugned order, it is considered just and proper and hence is observed that in relation to such report of the Commissioner, if the plaintiff-petitioner has any objection or any other submission to make before the Court, the same shall be permitted by the learned Trial Court and shall be duly considered at the proper stage. With the observations aforesaid, this writ petition stands dismissed. No costs. (DINESH MAHESHWARI),J. mk