HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 28 Case :- WRIT - C No. - 2600 of 2008 Petitioner :- Radhey Shyam And Another Respondent :- Addl. District Judge And Others Petitioner Counsel :- Uma Kant Respondent Counsel :- Sc,O.P.Mishra Hon'ble Sudhir Agarwal,J.
1. Heard Ms. Rishu Mishra, Advocate holding brief on behalf of Sri Uma Kant, learned counsel for the petitioner and Sri Om Prakash Mishra, Advocate for respondents no. 2, 3 and 4.
2. This writ petition is directed against the orders dated 04.08.2007 and 15.10.2007 (Annexures- 5 and 6 to the writ petition respectively) whereby petitioner's application for appointing survey commission has been rejected by appellate court on various grounds including extraordinary delay and also that appellant cannot be allowed to fill in the lacuna.
3. Learned counsel for the petitioner contended that in order prove possession of parties on the area in question it was necessary to appoint survey commission for which petitioner's application has been made but without looking into this aspect of the matter the appellate court has illegally rejected the same. She also placed reliance on a judgement of this Court in Gajraj and others Vs. Ramadhar and others, AIR 1975 All. 406.
4. The power to appoint survey commission is provided in Order XXVI Rule 9/10 of the Code of Civil Procedure which confers power upon Court to appoint survey commission if it deem necessary for adjudication of case. Here during the course of trial no such application showing necessity of survey commission was made by petitioner. It was always open to petitioners to lead evidence for the facts which they wanted to show but having failed to do so, obviously they could not be allowed to fill in the lacuna.
5. Order XXVI C.P.C. deals with Commissions. Commissions for local investigation is dealt by Rule 9 and it reads as under:
"9. Commissions to make local investigation.--In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it things fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
6. The purpose of appointing Commission is not to fill in a lacuna or to find out some evidence in favour of one or the other party at any stage. The Court in adjudication of a dispute try to find out the truth and the basic rational of appointment for a Commission for local investigation is to extract the truth. This Commission can be appointed by the Court on its own or if may find it expedient when an application is made by one of the party but the requirement of a Commission is to be seen by the Court itself whether it is required or not. The basic responsibility to adduce evidence lie upon the parties. This is how the purpose and scope of appointment of Commission under Order XXVI Rule 10 and 10A has been observed by a Special Bench of this Court in The Sunni Central Board of Waqfs U.P. Lucknow Vs. Sri Gopal Singh Visharad, [2010 ADJ 1 (SFB) (LB)] and in the judgment delivered by myself (Hon'ble Sudhir Agarwal, J.) in para 3749 a similar provision contained in Rule 10A was referred and the Court observed that if the Court is of the opinion that it would be convenient to have a Commission appointed to enquire into certain questions or making local investigation and file report, such a Commission may be appointed and not otherwise. The Court also observed in para 3750 of the judgement that it vests in the discretion of Court to appoint a Commission when it thinks necessary and expedient. In effect the Court should be of the opinion that such Commission is necessary to help it in extracting truth. If such a Commission is appointed and submit its report, it is an evidence in the suit subject to remedies available to parties concerned. Here is not a case where the Court find it expedient for appointment of such Commission.
7. The decision cited by petitioner in Gajraj (supra) however does not apply to facts of the case inasmuch as the Court in that judgement also has held that it is the power of Court to appoint survey commission, as is evident from following:
"Issue of a commission is something which is quite different from production of a document or examination of a witness. Provisions regarding issue of a commission are to be found in Order 26 of the Code. Rule 9 of Order 26 provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court."
8. The present case is not where the Court has found it necessary to got spot inspection by survey commission and, therefore, the decision cited by petitioner has no application in the present case.
9. The writ petition lacks merit and is accordingly dismissed with cost of Rs. 10,000/-. This Court further observe that appeal is lying pending for the last three years and, therefore, it would be appropriate and in the interest of justice that appellante court be directed to expedite final hearing for disposal of appeal and pass final order within a period of three months from the date of production of certified copy of this order in accordance with law after hearing all concerned parties.
Order Date :- 8.4.2011 AK