Allowed

Islam Mian v. Imaman Miyan

Jharkhand HC2 Nov 2022C.M.P./88/2021

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of a plea for appointment of a pleader commissioner to scientifically measure encroached suit property. The Court held that the lower court's reliance on alleged lack of pleading was erroneous as paragraphs 8, 9, 11, and 16 of the plaint addressed encroachment, and set aside the order to allow the petitioner's application.

What did the court decide?

The impugned order rejecting the petition for appointment of pleader commissioner is set aside and the current civil miscellaneous petition is allowed.

Islam Mian Vs Imaman Miyan — Property and Title | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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C. M. P. No. 88 of 2021

Islam Mian

… …. Petitioner

Versus

Imaman Miyan

¶8

Samud Miyan

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Nizam Miyan … …. Opp. Parties

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioner : Mr. A.K. Sahani, Advocate For the Opp. Parties : Mr. Vijay Kr. Sharma, Advocate

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Oral Order

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05 / Dated : 02.11.2022

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The petitioner/plaintiff has filed the instant petition for quashing the order dated 13.02.2020 passed by the learned Munsif, Chatra in Original Suit No. 14 of 2012 whereby and whereunder, the petition filed under Order XXVI Rule 9 read with Section 151 C.P.C. for appointment of pleader commissioner has been rejected.

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It is submitted by learned counsel for the petitioner that the petitioner has filed the suit, inter alia, for a decree of declaration of right, title and interest over the suit property and to remove the illegal unauthorized construction made by defendant nos. 1, 2 and 3 and for a decree for permanent injunction.

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In view of the encroachment of the plaintiff’s suit property, the petitioner filed the petition before the learned Court below for scientific measurement of the suit land by the Pleader Commissioner so that the issue of possession could be resolved. Learned Court below rejected the petition mainly on the ground that there was no specific pleading of the plaintiff with regard to encroachment of the land.

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In this context, it is submitted that specific pleading has been made in paragraphs 8, 9, 11 and 16 of the plaint regarding encroachment. Therefore, the observation of the learned Court below was an error of record that there had not any pleading in this point.

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It is submitted by learned counsel for the opposite parties/defendants that the instant petition for appointment of Pleader Commissioner has been made at a belated stage that the petition for local investigation cannot be closed after the evidence is closed.

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It may be stated at the outset that object of Order 26 Rule 9 is not to

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assist a party to collect evidence, where the party can get the evidence itself. A Court should not issue writs to commissioners where the parties can produce the relevant evidence at their own. However, the jurisdiction vested in the Court under this provision can be exercised for the ends of justice. The petition can however be rejected when it is filed at a belated stage for delaying the disposal of the case.

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The plaintiff/petitioner has filed the instant suit for the relief inter alia to remove unauthorized encroachment. There are pleadings also with regard to it.

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Under the aforesaid reason assigned by the learned Court below while rejecting the petition for appointment of pleader commissioner does not appear to be sound.

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Under the circumstance, the impugned order is set aside and the civil miscellaneous petition is allowed.

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(Gautam Kumar Choudhary, J . )

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AKT

Islam Mian v. Imaman Miyan

Case brief

What is this about?

What did the court decide?

Islam Mian v. Imaman Miyan

Case brief

What is this about?

What did the court decide?

What the court decided

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