- (1.) THIS petition has been filed against the order dated 14th September, 2012 passed by the Additional District Judge, Dholpur dismissing the objections filed by the petitioners as respondents in the appeal pertaining to a report of the Commissioner, appointed under Order 26 Rule 9 CPC by the consent of the parties vide order dated 29th August, 2012 passed by the learned Appellate Court.
(2.) I have heard the learned counsel for the parties and perused the writ petition including the impugned order. It transpires that even though a Commissioner was appointed in the first instance by the learned trial court and the report of the local inspection submitted before learned trial court, subsequently, a Commissioner was appointed afresh by the consent of the parties by the Appellate Court for more detailed report. The case of the petitioners before this Court is that the report of the Commissioner appointed by the learned Appellate court is contrary to the report of the Commissioner appointed by the learned trial court and hence, objections thereto ought to have been allowed by the Appellate Court. Counsel for the petitioners submits that even though counsel for the petitioner (respondent in appeal) was present at the time of inspection, yet the inspection report is not signed by the respondent in appeal or his counsel. It is submitted that report filed before the Appellate Court is palpably erroneous as it depicts a different fact situation obtaining on site as against the fact situation recorded under the report of the Commissioner appointed by the learned trial court. Counsel submits that objections raised by the petitioners with regard to the report of the second Commissioner appointed by the Appellate Court ought to have been considered by the Appellate Court and in dismissing the said application the Appellate Court is likely to over turn the order passed by the trial court dismissing the plaintiffs' application under Order 39 Rule 1 and 2 of CPC. In my considered view, the report of the Commissioner following the local inspection only depicts fact situation as obtaining at site. In the instant case, there are two reports of the Commissioners on record, one appointed by trial court and other appointed by Appellate court. Both these reports of the Commissioner constitute material for adjudication of appeal before the Appellate Court against the dismissal of the plaintiffs' application under Order 39 Rule 1 and 2 of CPC. Aside of the two reports of the Commissioner both following the local inspection, the Appellate Court will no doubt take into consideration the other material available before it, as also consider the reasoning of the trial court before deciding the appeal against the order dated 23rd August, 2012 passed by the Civil Judge (Jr. Division) Dholpur. But, for the present I find no reason to interfere with the impugned order. The petition is dismissed, accordingly. Stay application also dismissed. All Corrections made in the order have been incorporated in the order being emailed. ;