(D WRIT PETITION ( 227 ) No. é9h© 0f 2010 BETWEEN 1. Ashok Kumar S/o Sewaram Agrawal, aged about 40 years. 2. AjayKumar S/o Sewaram Agrawal, aged about 35 years. 3. Ghansiram S/o Sewaram Agrawal, aged about 51 years. 4. Smt. Indramani Devi Wd/o Late Sewaram Agrawal, aged about 75 years. A11 resident of Ward No. 7, Sakti, Tahsil Sakti, District Janjgir Champa CG). PETITIONERS PLAINTIFFS a a 0‘ 3 ...;. AND Smt. Deoki Devi D/o Late Shri Rameshwar Das Agrawal 'Wife of Shri Om Prakash Agrawa1,R/o Kharsiya, Tahsil Kharsiya, District Rajgarh (CG). Vinod Agrawal S/o Rameshwar Das Agrawal, aged about 45 years. Shailendra Agrawal S/o Vlnod Agrawal aged about 29 years Respondents No. 2 and 3 both residing at Sakti, Ward No.7, Tahsil Sakti, District Janjgir Champa (CG). " RESPONDENTS DEFENDANTS ' WRIT PETITION UNDER ARTICLE 227 OF THE 'CONSTITUTION OF INDIA n Q ..... ( W:: HIGH COURT OF CHHATTISGAw AT BILASPUR Writ Petition (227) N0. 6940 of 2010 PETITIONERS : Ashok Kumar & others Fiaintiffs Versus Smt. Dcoki Devi & others RESPONDENTS Defendants (WRIT PETITION UNDER ARTICLE£2J OF THE CON S'I‘ITUTION OF INDIA} (SB: Hon'ble Mr. N‘K. Agarwal, J; Present : Shri Sunil Sahu, Advocate far the petitioners.- Shri Harsh Wardhan, Advocate for the respondents. ORAL ORDER (Passed on 281N526} 1) 1. Instant petition calls in question the legality and gropriety of the order dated 18.11.2010, passed by Addl. District Judge, SaktL Distt. Janjgir Champa, in Misc. Civil Appeal No. 03/09. 2. Brief facts of the case are that : In a suit pending consideration before Civil Judge, Class I, Sakti, petitioner’s application for grant of interim injunction was allowed by the trial court. In an appeal preferred by the respondents against the order of trial court, Commissioner was appointed for spot inspection and after receipt of Commissioner’s report the matter was fixed for recording evidence of the Commissioner. 3. Vide impugned order, instead of recording evidence of Commissioner, the matter has been fixed for hearing on the point I Whether or not the matter requires remand. Hence this petition. 9,7 The only submission made by Shri Sahu, learned counsel appearing for the petitioners is that, first appellate court should have fErst recorded evidence of the Commissioner and thereafter should havo fixed the matter for the purpose of hearing whether or not matter should be remanded to the trial court. On the other hand, Shri Harsh Wardhan, leamed’counsel appearing for the respondents submits that the petitioners are free to move application for cross examination of Commissioner, and therefore, no illegality has been committed by the first appellate court warranting interference of this court under Article 227 of the Constitution of India. l have heard the counsel appearing for the parties and perused the order impugned. Indisputabl’y, the matter was earlier fixed on 30.03.2010 for recording evidence of Commissioner'and without assigning any reasons, instead of recording evidence of Commissioner, the matter has been hxed for consideration whether or not matter should be remanded to the trial court. Therefore, in the opinion of this court, - the first appellate court should have first recorded the evidence of Commissioner as directed by it vide order dated 30.03.2010 and thereader should have considered the matter whether or not it needs remand. For the reasons mentioned hereinabpve, in the considered opinion of this court, grounds have been made out for interference of this court 9% under Article 227 of the Canstimtior: of India, Accordingly the er impugned dated 18,112010, being not sustainable in law deserves to be and is hereby set aside. The first appellate court is directed to record evidence of the .. direeted by it and thereafter shall preoeed with the matter for considering, whether the matter needs remand or not, on its own merits in accordance with law Petition is accordingly allowed. No order asto costs, Sdl— N.K. Agrawa‘ 0rd Commissioner first as 10, Sahu Judge