MITAL, CJ. - (1.) - This court way back on Ist of November, 1985 had ordered in a revision which arose out of an application for grant of temporary injunction that when defendant constructs his house, he will leave at least 4 feet space towards the plaintiff's house so that from that 4 feet the plaintiff may have right of passage. The main suit is still pending. During the pendency of the suit, the plaintiff filed an application under Order 39 Rule 2a of the Code of Civil Procedure saying that the defendant has raised constructions and has not left 4 feet space. The trial court appointed an Advocate as a Local Commissioner. The Local Commissioner reported that the distance between the house of the plaintiff and defendant is 7 feet 1 inch. The trial court dismissed the plaintiffs application. This is plaintiffs revision against the said order.
(2.) THE revision has been pending in this court for nearly 7 years and the record of the trial court is also here. By now the suit and appeal may have been disposed of. I cannot help saying that in revisions arising out of suits which are pending in the trial court, by and large record should not be summoned by the High Court. THE High Court while hearing such revisions at the admission stage should direct, if necessary, to the counsel appearing in the case to have brief from the lawyer appearing in the trial court or time be given to the counsel to complete their brief after inspecting the record of the trial court instead of summoning the record on their mere asking. For few days, I have been sitting in single Bench to decide Civil Revisions and find that the records of the trial courts are summoned in all such' cases and are lying in this Court for upto 8 years while the revisions are pending. With the result, the entire proceedings in the suit are stayed causing manifest injustice to the parties. Adverting to the facts of the case, I find that it is a frivolous revision. The only argument raised by the learned counsel for the petitioner is that some decision was rendered by a learned Judge of this court in 1990 wherein it was observed that such like interim matters should not be decided on affidavits alone and the court should record the evidence on oath by production of witnesses. The Courts have always power to summon witnesses if necessary, but the 1990 so called judgment did not change the law. It is also always open to the court either to decide on affidavits or by taking evidence on interim matters like the present one with which we are concerned and the best method of decision is always to appoint a Local Commissioner. In this case, an Advocate was appointed as a Local Commissioner and he submitted his independent report that instead of 4 feet, 7 feet 1 inch was left by the defendant. If we were to accept the argument of the learned counsel for the petitioner, in every case the matter will be sent back to the trial court for recording evidence, but the position will not improve. We have an affidavit of the petitioner in support of the application that the respondent has violated the order of this court by not leaving 4 feet space and by blocking his passage. On filing such false affidavit, we can order for his prosecution and if opportunity is given to make his statement on oath, we will have one more false statement. To find out which of the parties is making true statement for such interim matters, it is always better to have a Local Commissioner. In this case, inspite of the report of the Local Commissioner, the petitioner did not raise little finger before the trial court seeking permission to lead evidence or for filing objections against the report. Therefore, the argument of the learned counsel for the petitioner is stated to be rejected and the revision being frivolous is rejected with costs which are quantified at Rs. 500/ -.
(3.) THE record of the trial court is here and the same be sent back forthwith. THE parties through their counsel are directed to appear before the trial court on 4th of October,1994. .;