Order 39 Rule 7 CPC | Commissioner's Report Is Not The "Final Word" & Is Subject To Parties' Objections: J&K&L High Court

A bench of Justice Puneet Gupta made these observations while hearing a plea in terms of which the petitioner-plaintiff had thrown up a challenge to the appointment of a Commissioner by the trial court under Article 227 of the Constitution of India.

The petitioner argued that when the respondent-defendant had admitted the fact that she had sold the disputed land in favour of the petitioner-plaintiff and there was no dispute with regard to the possession of the plaintiff also in the land in question, the trial court could not create evidence by appointing the Commissioner.

Contesting the plea, the respondents submitted that they in no way had admitted the possession of the plaintiff in the land in question and in fact the petitioner herein has encroached upon the land of the respondent.

Respondents further urged that the report of the Commissioner will only help the court in determining the issues that may arise before the trial court.

The bench observed that prima facie it is made out from the written statement filed by the respondent-defendant that the respondent though has not denied the execution of the sale deed yet she has denied the other averments contained in the plaint. The argument of the counsel for the petitioner that the respondent has not denied the exclusive possession over the suit property and, therefore, the poles and barbed wire that are alleged to be raised by the plaintiff shall be deemed to have been raised by the petitioner cannot be accepted, the bench recorded.

"The trial court while appointing the Commissioner cannot be said to have passed the order with a purpose of creating evidence for either of the parties and thus has not transgressed its jurisdiction. The report of the Commissioner is not the final word and is subject to the objections that may be taken by the parties to the suit", the bench recorded.

Thus, it was is of the view that the order impugned does not call for any interference in exercise of court's supervisory jurisdiction and dismissed the plea.

Case Title: Darshan Singh Vs Indru Devi

Citation: 2022LiveLaw (JKL) 107

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