Uttarakhand High Court
3 January vs Navneet Kumar Jain & Anr on 3 January, 2025
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
2025:UHC:123
HIGH COURT OF UTTARAKHAND AT NAINITAL
Civil Revision No. 129 of 2024
03 January, 2025
Virendra Singh Chauhan ... Revisionist
Versus
Navneet Kumar Jain & Anr. ... Respondents
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Presence:-
Mr. Piyush Garg, Advocate for the revisionist
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Hon'ble Vivek Bharti Sharma, J.
Present Civil Revision is filed by the
revisionist/defendant no.1 against the order dated
03.12.2024 passed by learned 1st Additional Civil Judge
Senior Division, Dehradun in O.S. No.72 of 2017, whereby
the application filed by the revisionist/defendant no.1 for
issuance of Commission for ascertaining the factual
position on spot of the property in question, was
dismissed.
2. Brief facts of the case are that respondent no.
1/plaintiff instituted a suit being OS no. 72 of 2017 in the
court of learned Civil Judge (Senior Division) Dehradun
against the revisionist/defendant no.1 for grant of a decree
of specific performance stating that the
revisionist/defendant no.1 is the absolute owner in
possession of the suit property and had proposed to sell
the same to the respondent no. 1/plaintiff and respondent
no.2/defendant no.2 for sale consideration of `
12,00,000/-; that, a registered agreement to sell was
executed between the parties on 15.03.2013 and a sum of
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` 10,00,000 was paid in advance but despite that the
revisionist/defendant no.1 did not appear to execute the
sale deed in favour of the respondent no.1/plaintiff.
3. The revisionist/defendant no.1 appeared before
the Trial Court and filed his written statement. In the
written statement, it was contended that no agreement to
sell with intention or knowledge of agreeing to sell the said
land or any other land has ever been executed between the
parties; that, the aforesaid agreement to sell had only been
executed by the revisionist/defendant no.1 as security for
the loan of ` 10,00,000 taken out by the
revisionist/defendant no.1 from the respondent
no.1/plaintiff with the express disclosure of the fact that
the land in question is not sale-able; that, the land
described in the agreement to sell and the schedule of
plaint is in fact a land being used as a passage/approach
road for Doon Ghati Institute of Professional Education.
4. Learned counsel for the revisionist/defendant
no.1 would submit that as it is was the specific plea of the
revisionist/defendant no.1 that the nature of the land is
such which could not have been agreed to be purchased
by the respondent no.1/plaintiff and could not have been
agreed to be sold by the revisionist/defendant no.1 and
that it is being used as an approach road for the Doon
Ghati Institute of Professional Education, therefore, the
nature of the land in question and its use is the most
crucial fact required for effective adjudication of the case
in hand. Hence, the revisionist/defendant no.1 filed the
application paper no.60C2 for issuance of Commission to
determine the nature of the land but the learned Trial
Court has dismissed the said application by the impugned
2025:UHC:123
order, hence, this revision.
5. Learned counsel would further submit that the
controversy between the parties hinges around the nature
of land, therefore, it is imperative to issue a Commission to
ascertain the nature of land, which cannot be determined
by way of any other evidence. He would further submit
that the Trial Court erred in law in dismissing the
application of the revisionist/defendant holding that the
Court cannot assist a party for collection of evidence. In
support of his case, he would place reliance upon a
judgment of Hon'ble Supreme Court in re Haryana Waqf
Board v. Shanti Sarup and Ors. (2008) 8 SCC 671.
6. Heard learned counsel for the revisionist and
perused the entire material available on file as well as gone
through the case-law.
7. The Trial Court has dismissed the application
paper no.60C2 holding that the revisionist/defendant no.1
has accepted the sale contract dated 15.03.2013 and as
far as the dispute as to for what purpose the said contract
was executed is concerned, it is a matter of evidence. It
was also observed that the Court cannot assist a party for
collection of evidence, thus, the basis for issuing the
Commission in the present case does not seem sufficient.
In the opinion of this Court, the Trial Court is justified in
rejecting the application moved by the
revisionist/defendant no.1 under Order 26 Rule 9 CPC. It
is trite that the Trial Court is not to assist the either party
for collection of the evidence. The fact whether the suit
property lies on the common path or not can be
established by way of evidence and it is for the respondent
2025:UHC:123
no.1/plaintiff or the revisionist/defendant to stand on
their own legs to prove their case.
8. Insofar as case of Haryana Waqf Board (supra)
referred by counsel for the petitioner/plaintiff is
concerned, it is distinguishable on facts and is therefore
of no help to the revisionist/defendant no.1. In this case,
the Commission was to be issued for the purpose of the
demarcation of the suit land whereas in the present case
the main dispute between the parties is with regard to the
intention of the parties behind the execution of agreement
to sell.
9. Moreso, this Court, in exercise of revisional
jurisdiction under Section 115 of CPC, can only exercise
its jurisdiction, if it comes to the conclusion that the
subordinate courts exercised a jurisdiction not vested in it
by law; or has failed to exercise a jurisdiction so vested; or
has acted in exercise of its jurisdiction illegally or with
material irregularity. In the absence of any of the three
contingencies mentioned above, the revisional court
should not interfere in the order passed by the court
below. In the case at hand, as already stated above,
impugned order does not suffer from any illegality or
material irregularity. No interference is, therefore, called
for.
10. Accordingly, the civil revision is dismissed in
limine.
(Vivek Bharti Sharma, J.)
03.01.2025
Rajni
RAJINI UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=97cfa6e4cbd49c07b876db484
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GUSAIN
d01342, postalCode=263001,
st=UTTARAKHAND,
serialNumber=8D039BC77BD1A2222B4
DF4FC80D4557562F95BEBA013F53061
6A158A0A878BD8, cn=RAJINI GUSAIN
Date: 2025.01.07 15:46:27 +05'30'
