Dismissed

Nimb Singh v. the Additional Chief Judicial Magistrate

Rajasthan HC20 Feb 2019CW/2361/2019

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the rejection of an application under Order 39 Rule 7 CPC for appointing a commissioner. The court held that the discretion under the rule must be exercised judiciously only when necessary for disposing the suit or application, and not merely for an applicant to collect evidence regarding site position, which was already available.

What did the court decide?

The writ petition challenging the trial court's rejection of the application for appointment of a commissioner is dismissed.

Nimb Singh Vs the Additional Chief Judicial… — Civil Procedure and Limitation | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 2361/2019

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Nimb Singh S/o Shri Agar Singh, aged about 33 Years, By CasteRajput, R/o Bhawanipura, Tehsil- Pokaran, District- Jaisalmer (Raj.).

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----Petitioner

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Versus

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The Additional Chief Judicial Magistrate, Pokaran, DistrictJaisalmer (Raj.).

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The Executive Officer, Municipal Council, Pokaran, DistrictJaisalmer (Raj.).

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----Respondents

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For Petitioner(s) : Mr. Sanjeet Purohit Mr. Surendra Thanvi For Respondent(s) :

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

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20/02/2019

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The petitioner by way of this writ petition has challenged the order dated 13.02.2019 by which the application under Order 39 Rule 7 CPC for appointment of Commissioner has been rejected by the learned trial Court.

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Learned counsel appearing for the petitioner submits that the petitioner had moved the application so that the Court may be able to have correct assessment of the site position. The acutal position of the site and details of the boundaries with the neighbors would be also verified. It is his submission, that the Order 39 Rule 7 CPC is a provision, which is different from the provisions of Order 26 Rule 11 CPC and application had not been moved for the purpose of collecting evidence for the applicant.

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(2 of 2)

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[CW-2361/2019]

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On the other hand, learned counsel appearing for the respondents points out that before the application moved for appointing of the Commissioner, interim prayer was not refusal and the petitioner preferred an appeal which was rejected. The petitioner had long time available from 08.08.2018 to 03.02.2019 and present application has been moved only to liner on the case. Plot No.2 of Saint Laxman Das Colony had already been earlier put to auction which was cancelled and a fresh auction has been fixed.

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I have heard learned counsel for the parties and find that the learned Court below has noticed that the application has been moved for appointment of Commissioner whereas photographs have already been produced before the Court. Thus, it is apparent that the application has been moved only for the purpose of the collecting evidence and therefore, the Court below has rejected the application.

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This Court is of the firm view, that the discretionary power under Order 39 Rule 7 CPC has to be exercised by the learned Court for appointment of Commissioner only when he finds it necessary for disposal of the injunction application/suit. Thus, the power is to be exercised judiciously and with the purpose to reach a particular conclusion. However, it cannot be a mode for the applicant to prove his possession and collect evidence thereto. In the present case, the discretion has been exercised judiciously and no interference is called for.

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The writ petition being devoid of merit is accordingly dismissed.

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(SANJEEV PRAKASH SHARMA),J

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Ravi Kh./84

Nimb Singh v. the Additional Chief Judicial Magistrate

Case brief

What is this about?

What did the court decide?

Nimb Singh v. the Additional Chief Judicial Magistrate

Case brief

What is this about?

What did the court decide?

What the court decided

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