- (1.) HEARD Sri Dilip Pandey, learned counsel for petitioner and Sri S.A. Zamal, learned counsel for respondents.
(2.) FACTS of the present case are that petitioner-plaintiff initially filed a Suit (registered as Regular Suit No. 254 of 2006), dismissed vide judgment and decree dated 31.03.2010 passed by Civil Judge(J.D.), Raebareli. Aggrieved by the same, petitioner filed an appeal (registered as Misc. Appeal No. 32 of 2010) before District Judge, Raebareli/respondent no. 1. During the pendency of the appeal, she moved an application under Order VI Rule 17 for amendment as well as an application under Order XXVI Rule 9 C.P.C. for Commission. By means of impugned order dated 02.11.2010, respondent no.1 allowed the application for amendment, however the application for local inspection/Commission has been rejected. Hence, present writ petition has been filed by the petitioner challenging the order dated 02.11.2010 so far it relates to the rejection of petitioner's application for inspection/Commission moved under Order XXVI Rule 9 C.P.C. Learned counsel for petitioner has assailed the impugned order dated 02.11.2010 on the following grounds : (A) Respondent no. 1 has committed manifest illegality & irregularity in dismissing the petitioner's application moved under Order XXVI Rule 9 C.P.C. for making Commission through impugned order dated 02.11.2010. (B) In changed circumstances/developments, the petitioner has moved an application under Order VI Rule 17 for amendment before the respondent no. 1 alongwith an application under Order XXVI Rule 9 of C.P.C., but the learned respondent no. 1 has on the one hand allowed the petitioner's application under Order VI Rule 17, but on the other hand, has rejected the petitioner's application under Order XXVI Rule 9 for making spot Commission vide its order dated 02.11.2010, which is totally illegal, unjust, improper. (C) After the subsequent development/events, it is necessary to make spot commission in the changed circumstances and as per the provisions appearing Under Order XXVI Rule 9, the petitioner has moved the aforesaid application, but the learned respondent no. 1 has rejected the same in most arbitrary & illegal manner, liable to be set aside.
(3.) LEARNED counsel for respondents while defending the order dated 02.11.2010 passed by respondent no. 1 by which the petitioner's application for issue of Commission has been rejected, submits that the order in question is perfectly valid, needs no interference by this Court while exercising the power of judicial review under Article 226 of the Constitution of India, as the said order is neither perverse in nature nor contrary to the facts on record, rather the respondent no. 1 after taking into consideration that there is sufficient evidence on record, so there is no need to issue Commission, sought by the petitioner only to collect additional evidence in her favour. The said ground does not falls within the ambit and scope of the provisions for issue of Commission under Order XXVI Rule 9 C.P.C., so the present writ petition is liable to be dismissed. I have heard learned counsel for parties and perused the record. From the perusal of the record, it shows that District Judge, Raebareli/respondent no. 1 has dismissed the application for Commission moved under Order XXVI Rule 9 C.P.C. on the ground that appellant without any reasonable justification or reason wanted to collect the evidence in her favour when admittedly all the evidence are on record which are necessary for adjudication of the controversy involved in the matter in question.;