WPMS/763/2022
2022 Latest Caselaw 1269 UK

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                                  WPMS No. 763 of 2022
                                  Hon'ble Manoj Kumar Tiwari, J.

Mr. Devesh Ghildiyal, Advocate for the petitioner.

Heard learned counsel for the petitioner.

Petitioner is plaintiff in Original Suit No. 451 of 2011 pending before IInd Additional Civil Judge, Senior Division, Dehradun. He is challenging the order dated 11.08.2015 passed by learned Trial Court and also the judgment dated 05.01.2022 passed by learned Revisional Court.

By the impugned order, learned trial Court rejected petitioner's application filed under Order 26 Rule 9 C.P.C. for appointment of Commission by holding that he cannot seek collection of evidence through Court. The revision filed by the petitioner was dismissed on the ground that it is not maintainable. Against these two orders, petitioner has filed this writ petition.

I have gone through the application under Order 26 Rule 9 CPC filed by petitioner and the order passed thereupon. Learned Trial Court has given valid reason for rejecting petitioner's application. Law is settled that power available to a Court under Order 26 Rule 9 C.P.C. cannot be used for collection of evidence and a point which can conveniently and ought to be substantiated by the parties by evidence at the trial, cannot be referred to the Commissioner.

In such view of the matter, there is no scope for interference with the trial Court's order.

Learned counsel for the petitioner submits that petitioner had sought appointment of Commissioner for inspection of the suit property for disposal of temporary injunction application filed by defendant Nos. 1 to

3. For this purpose, petitioner could have moved an application under Order 39 Rule 7 C.P.C.

For the aforesaid reasons, the writ petition is dismissed with liberty to petitioner to move appropriate application, as per law.

(Manoj Kumar Tiwari, J.) 21.04.2022 Shubham