- (1.) By way of the instant writ petition, the petitioners have beseeched to quash and set aside the order dated 19th September, 2011, whereby the learned Additional Civil Judge (J.D.), South, Kota, dismissed the application filed by the petitioners under Order 26 Rule 9 of CPC.
(2.) Having heard the learned counsel for the petitioner and carefully perused the relevant material on record including the impugned order, it is revealed that the plaintiff-respondent no.1 filed a civil suit before the court of Civil Judge (Jr.Div.), South, Kota, stating therein that plot no. J-570(a) was taken on lease from the respondent no.2 on 14th June, 2000 and he started business of bag repairing by raising boundary wall thereon. The lease deed was revised on the said day for the plot measuring 300 sq.meters. The petitioner further submitted that he received a letter from the Assistant Eningeer, Kota, on 15th July, 2006, wherein it was stated that the said plot was public premise and the plaintiff was having illegal and unauthorized possession thereon. The plot was liable to be vacated as the same was the property of Railways. The respondent-plaintiff pleaded that there was dispute with regard to the title of the plot between Railway and the RIICO and the same was adjudicated under Public Premises (Unauthorized Occupants) Act, by the Estate Officer. The respondent-plaintiff also filed an application for temporary injunction under Order 39 Rule 1 and 2 of CPC, which was decided in favour of the respondent-plaintiff. The petitioners-defendants preferred an appeal against the said order and during the pendency of the appeal, the Appellate Court appointed a Commissioner to inspect the site. Pursuant to the appointment of Commissioner's order, the Commissioner inspected the site and submitted his report in the court on 19th May, 2008. Thereafter, the petitioner-defendant filed an application under Order 26 Rule 9 of CPC imploring court to appoint a Commissioner for inspecting the site and submitting the report in the court. The learned trial court gainsaid the prayer and dismissed the application.
(3.) The learned trial court is found to have dismissed the application on the ground that there has already a Commissioner's report dated 19th May, 2008 on record, which was filed by the Commissioner pursuant to the order appointing Commissioner by the Appellate Court. In addition to that, there was one more Commissioner's report dated 2nd February, 1998 also on record, filed by Tehsildar Ladpura after inspection of the site. The learned trial court observed that if, in addition to this evidence, the petitioner-defendant intended to lead any evidence with regard to the ownership of the plot in question or in other respect, he could prove the same by way of leading oral or documentary evidence. Thus, in the instant case, the impugned order is found to be just and proper and the learned trial court is found to have rightly dismissed the application filed under Order 26 Rule 9 of CPC, wherein the petitioner-defendant had implored the court to appoint Commissioner again for the inspection of the site. The learned counsel for the petitioner has utterly failed to convince me to take a view contrary to that of the view taken by the learned trial court, hence, I do not find any ground to interfere with the order of the learned trial court and the writ petition being devoid of any substance deserves to be dismissed at the threshold.;