- (1.) Instant writ petition has been filed by the defendant-petitioner assailing the order dt. 18/01/2014 passed by the lower appellate court by which the the application filed by the defendant-petitioner for appointment of commissioner has been rejected.
(2.) It is noticed that a Civil Suit No.72/1990 came to be decreed by the trial court on 17/08/2009 in favour of the plaintiffs-respondents against which a civil regular appeal No.69/2009 came to be preferred by the plaintiff-respondent before the lower appellate court and during the pendency of the civil regular appeal, an application was filed by the defendant-petitioner before the lower appellate court for appointment of commissioner for ascertaining and taking on record the factual position of the suit property, however, the lower appellate court rejected the said application vide order impugned. Hence instant writ petition.
(3.) Counsel for the defendant-petitioner submitted that the exact factual position of the suit property was required to be ascertained and taken on record by the trial court but since the trial court failed to do the same, therefore, application was moved by the defendant-petitioner before the lower appellate court for appointment of commissioner so that the exact details and factual position of the suit property may be ascertained and taken on record in order to correct and true disposal of the dispute between the parties. In support of his submission, counsel for the defendant-petitioner relied upon judgment of Hon'ble Apex Court in the case of Haryana Waqf Board Vs. Shanti Sarup and others, 2008 8 SCC 671; judgment of Himachal Pradesh High Court in the case of Bali Ram Vs. Mela Ram and another, 2003 AIR(HP) 87 and judgment of Bombay High Court in the case of Smt. Shamlata wd/o Manohar Raut & Ors. Vs. Vishweshwara Tukaram Giripunje & Anr., 2008 AIR(Bom) 155.;