Ashraf Ali Khilji vs Bhanwar Lal (2023/Rjjd/005390)
2023 Latest Caselaw 1768 Raj

[2023/RJJD/005390]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 18487/2022

1. Ashraf Ali Khilji S/o Haji Mohammed Hussain, Aged About 45 Years, Resident Of Opposite Vishnoi Nohra, Nehru Nagar, Barmer.

2. Askar Ali S/o Haji Mohammed Hussain, Aged About 40 Years, Resident Of Opposite Vishnoi Nohra, Nehru Nagar, Barmer.

----Petitioners Versus

1. Bhanwar Lal S/o Shri Veera Ram, By Caste Meghwal, Resident Of Near Industrial Area, Barmer Agore, Tehsil And District Barmer.

2. Municipal Council, Barmer, Through Its Commissioner.

----Respondents

For Petitioner(s) : Mr. R.K. Thanvi, Senior Advocate assisted by Mr. Ashok Thanvi.

For Respondent(s)          :



             HON'BLE MR. JUSTICE ARUN BHANSALI

                                     Order

15/02/2023

This writ petition has been filed by the petitioner aggrieved

against order dated 15.11.2022 passed by Additional District

Judge No. 1, Barmer, whereby the application filed by the

petitioner under Order XXVI Rule 9 CPC has been rejected. The

suit was filed by the plaintiff seeking permanent and mandatory

injunction against the defendants-petitioners, which came to be

decided by judgment dated 22.11.2019.

During pendency of the suit, a Commissioner was appointed

in application filed under Order XXXIX Rule 1 and 2 CPC. The trial

[2023/RJJD/005390] (2 of 3) [CW-18487/2022]

Court while deciding the suit has referred to/relied on the said

Commissioner report.

During pendency of the appeal, the present application under

Order XXVI Rule 9 CPC was filed, inter alia, with the submissions

that the Commissioner report, which was obtained by the trial

Court during the suit, was obtained ex-parte and that the same

was prepared by a lawyer and, therefore, a fresh expert/specialist

Commissioner be appointed for producing the report. The

application was contested by the respondent-plaintiff.

After hearing the parties, by the impugned order, the

Appellate Court came to the conclusion that the report was

produced on 28.11.2010, whereafter no objection was filed and

that another report Ex.4 was produced on record and that the

application was filed after more than 2 years of filing of the

appeal, the petitioners were not entitled to the relief claimed and

consequently rejected the application.

Learned counsel for the petitioners made submissions that

the appellate Court was not justified in rejecting the application,

inasmuch as, the Commissioner report during pendency of the suit

was obtained ex-parte and looking to the nature of controversy,

some revenue official should have been appointed as a

Commissioner and, therefore, as the said report was not prepared

properly, the Appellate Court should have appointed a fresh

Commissioner.

I have considered the submissions made by learned counsel

for the petitioners and have perused the material available on

record.

[2023/RJJD/005390] (3 of 3) [CW-18487/2022]

A bare look at the memo of appeal filed by the petitioners

aggrieved of the judgment and decree dated 22.11.2019 reveals

that the challenge laid is to the admissibility of the Commissioner

report and the fact that without exhibiting the same, the trial

Court could not have relied on the said report and that there were

contradictions in the Commissioner report and the statements of

the witnesses. Nowhere a prayer was made to quash the said

report and/or appointed fresh Commissioner.

In that view of the matter, the application made during

pendency of the appeal, without there being something more than

what was already available on record could not be accepted by the

First Appellate Court and the application has been rightly rejected.

In that view of the matter, no interference is called for in the

order dated 15.11.2022. The petition is, therefore, dismissed.

However, the rejection of the application and dismissal of the

present writ petition would not deprive the petitioner to continue

to press the grounds as raised in the memo of appeal in relation to

the Commissioner report, which was sought to be discarded by the

petitioners.

(ARUN BHANSALI),J 102-sumer/-

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