Rajesh v. Master Jiya Lal Garg & Anr.

CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Ashwani Gaur, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.13600-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.3449 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 9.3.2011 vide which application filed by petitioner for deciding objections to the report of Local Commissioner has been dismissed. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court. Facts relevant for the decision of present revision petition are that a suit for mandatory injunction directing respondent no.1-defendant no.1 for removing the alleged encroachment made on portion marked with letters `EDGF' towards the eastern side of the street and portion marked Civil Revision No.3449 of 2011(O&M) -2- with letters `ABDC' towards the northern side of the street by him and for restoring both the streets in dispute to its original position and also for giving direction to respondent no.2-defendant no.2 to get the encroachments removed from the two streets was filed by petitioner-plaintiff against the respondents-defendants.

Alongwith the suit an application for appointment of Local Commissioner under Order 26 of the Code of Civil Procedure (for short `the Code') was also filed, which was allowed. Local Commissioner submitted its report. Objections to the report of Local Commissioner also filed by petitioner-plaintiff. Earlier an application for appointment of another Local Commissioner was filed by present petitioner-plaintiff, which was dismissed by learned trial Court and revision against the said order was also dismissed by this Court vide order dated 14.9.2010, passed in Civil Revision No.5884 of 2010, Annexure P6. Another application was filed on behalf of the petitioner-plaintiff for deciding the objections filed by him to the report of Local Commissioner, which was dismissed by learned trial Court on the plea that application is pre-mature and that the same would be decided after recording evidence of Local Commissioner in Court.

Learned trial Court has also placed reliance upon a Division Bench judgment of this Court rendered in Balbir Dewan Cold Storage and General Mills v. Naveen Chander, 1989-1 (The Punjab Law Reporter) 677. It has been contended by learned counsel for the petitioner- plaintiff that learned trial Court should have directed the Local Commissioner to make further report after again visiting the premises in dispute by accepting objections. However, in my view there is no force in the argument of Civil Revision No.3449 of 2011(O&M) -3- learned counsel for the petitioner. Learned trial Court has not dismissed the objections filed by petitioner-plaintiff, however, the same have been kept pending to be decided after evidence of Local Commissioner is recorded in the Court. Learned trial Court has rightly observed that in view of a Division Bench judgment of this Court in Balbir Dewan Cold Storage and General Mills's case (supra) neither of the party is entitled to claim any issue with respect to the report and they can only examine Commissioner in person in open Court and that the objections, if any, filed by the parties, will be considered after examination and cross-examination of the Local Commissioner by the Court under Rule 10 of the Order 26 of the Code.

In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675 : AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:-

Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

Civil Revision No.3449 of 2011(O&M) -4- Hence, the present revision petition is, hereby, dismissed being devoid of any merit.

24.5.2011 (Ram Chand Gupta) Judge