Dismissed

Smt Pushpa Devi v. Shri Bhim Singh

Uttarakhand HC23 Oct 2024WPMS/2716/2012

Case brief

AI extract

What is this about?

This court dismissed the High Court Writ Petition challenging the rejection of an application for issuing a commission for evidence collection in a civil suit for cancellation of sale deed. The judge held that commission cannot be used for evidence collection and the writ petition was unfit for interference under Article 227.

What did the court decide?

The writ petition was dismissed; the interim order, if any, was vacated.

No
Date

Office Notes,
reports, orders or
proceedings or
directions and
Registrar’s order
with Signatures

COURT’S OR JUDGES’S ORDERS

WPMS No. 2716 of 2012
Hon’ble Man oj Ku m ar Tiw ar i, A.C.J.
Mr. T.A. Khan, Sr. Advocate, assisted by
Mr. Aditya Kumar Arya, Advocate for the
petitioner.

2.
Mr. Devesh Ghildiyal, Advocate for the
respondents.
3.
This is plaintiff’s petition under Article
226 of the Constitution of India challenging
the
order
dated
15.12.2012
passed
by
Additional District Judge III, Dehradun in Civil
Appeal No. 45 of 2004. By the said order, her
application for issuing commission has been
rejected. It is not in dispute that the suit is for
cancellation of sale deed and permanent
injunction. The said suit was dismissed by the
trial court vide judgment dated 26.08.2004.
In regular first appeal filed by the petitioner
under Section 96 of Code of Civil Procedure,
she moved an application for issuing a
commission to verify the following: -
“(A) Whether there is any boundary wall
existing on the eastern side of the disputed
land abutting to Bullawala Doiwala Road.
(B) Whether there exists any tree or trees and
if so, numbers and varieties.
(C) Whether there exists any cattle shed and
if so on which side of the disputed land.

(D) Whether any building material has been collected by the appellant near the disputed land.”
4. Defendant no. 1 filed objection stating
that similar prayer made by the petitioner for
issuing commission was rejected by the Trial
Court vide order dated 29.08.2003. In
paragraph 7 of the objection, it was further
stated that similar application made by the
petitioner in Misc. Appeal filed by her was also
rejected.
5. Learned Appellate Court/ 3rd Additional
District Judge, Dehradun rejected petitioner’s
application vide order dated 15.12.2012,
which is challenged in this writ petition.
6. Learned Appellate Court has held that
the Commission cannot be used for collection
of evidence and burden is upon the plaintiff to
prove his case. Since, the suit is for
cancellation of sale deed and description
regarding identity of the property in question
is given in the sale deed, therefore, having
regard to the purpose, for which the
commission was sought, learned Appellate
Court was justified in rejecting petitioner’s
application.
7. Law is well-settled that Commission
cannot be issued for collection of evidence, in support of a claim, thus, the reason assigned

(D) Whether any building material has been
collected by the appellant near the disputed
land.”

4.
Defendant no. 1 filed objection stating

that similar prayer made by the petitioner for

issuing commission was rejected by the Trial

Court
vide
order
dated
29.08.2003.
In

paragraph 7 of the objection, it was further

stated that similar application made by the

petitioner in Misc. Appeal filed by her was also

rejected.

5.
Learned Appellate Court/ 3rd Additional

District Judge, Dehradun rejected petitioner’s

application
vide
order
dated
15.12.2012,

which is challenged in this writ petition.

6.
Learned Appellate Court has held that

the Commission cannot be used for collection

of evidence and burden is upon the plaintiff to

prove
his
case.
Since,
the
suit
is
for

cancellation of sale deed and description

regarding identity of the property in question

is given in the sale deed, therefore, having

regard
to
the
purpose,
for
which
the

commission was sought, learned Appellate

Court was justified in rejecting petitioner’s

application.

7.
Law is well-settled that Commission

cannot be issued for collection of evidence, in
support of a claim, thus, the reason assigned

by learned 3rd Additional District Judge for
rejecting petitioner’s application cannot be faulted.
8. While exercising supervisory jurisdiction under Article 227 of the Constitution of India,
this Court does not find it a fit case for interference. 9. The writ petition is accordingly dismissed.
10. Interim order, if any, stands vacated.
( Man oj Ku m ar Tiw ar i, A.C.J.) 23.10.2024 Ujjwal

by learned 3rd Additional District Judge for

rejecting petitioner’s application cannot be
faulted.

8.
While exercising supervisory jurisdiction
under Article 227 of the Constitution of India,

this Court does not find it a fit case for
interference.
9.
The
writ
petition
is
accordingly
dismissed.

10. Interim order, if any, stands vacated.

( Man oj Ku m ar Tiw ar i, A.C.J.)
23.10.2024
Ujjwal

Smt Pushpa Devi v. Shri Bhim Singh

Case brief

What is this about?

What did the court decide?

Smt Pushpa Devi v. Shri Bhim Singh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Pramod Kumar Vs M/S Bimal Industries Situated at Dhalwala

Kuldeep Singh Vs Bhagat Singh

Kuldeep Singh Vs Savitri Rawat

Jafar Ali Vs Mahesh Chandra Agarwal

Amrit Corp Limited Vs Amit

Amrit Corp Limited Vs Amit