The Allahabad High Court dismissed a writ petition holding that once evidence was closed and the court proceedings entered the stage of arguments, any application filed for appointment of a commissioner would amount to permitting the party to fill up lacunae in its evidence.
The petition was filed by a tenant against the order of Judge, Small Causes Court, Saharanpur. The impugned order rejected the application filed by the Petitioner under Section 34 (1)(c) of the U.P. Act No. 13 of 1972 (the Act). The said application, filed after closing of evidence of both the parties, sought the appointment of a commissioner to obtain a demarcation report in respect of certain properties which were alleged to be in the possession of the ¬landlord.
The court observed that the aforementioned provision of the Act conferred the same powers on the prescribed authority as the provisions of Code of Civil Procedure, 1908 (CPC). Thus, provisions regarding the issuance of general commission under Order XXVI CPC would be applicable to any commission issued under Section 34 (1)(c) of the Act.
Relying on the verdict in Ranbir Singh Sheoran v. VIth Additional District Judge, Muzaffar Nagar & Ors., 1997 (2) ARC 347, Justice Dr. Yogendra Kumar Srivastava reiterated that the object of the provision for issuance of commission cannot be to assist a party to collect evidence or to initiate a roving enquiry. In the present case it is clear that the application for appointment of commissioner is an attempt of the petitioner to seek assistance of the state machinery to collect evidence and fill the gaps in his evidence, which is impermissible in law.
Arguments for the Petitioner were advanced by Advocate A.K.Malviya
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