SHIVAM MOTORS PVT. LTD. (M/S) & ANR. Vs. SANTOSH KUMAR AGRAWAL & ANR.

JUDGEMENT

(1.) BY this petition under Article 227 of the constitution of India, the petitioners seek to challenge the legality and validity of the order dated 29 -8 -2008 (Annexure P/12) whereby the district Judge, Korba, in an application filed by the plaintiff under Order 39, Rule 7 read with Order 26 Rule 9 of the code of Civil procedure, 1908 (for short, "CPC"), ordered to appoint a commissioner to verify the possession of the plaint schedule land.

(2.) THE brief facts, in nutshell, as projected by the petitioners are that the respondent/plaintiff filed a suit for specific performance in the Court of District Judge, Korba, in August, 2007. Written statement was filed by the petitioners/respondents and counter claim was filed in September, 2007. Thereafter, the plaintiff/ respondent No.1 filed an application under Order 39 Rule 7 read with Order 26 Rule 9 of the CPC for appointment of a Commissioner for spot inspection with regard to the possession of the property in respect of the petition schedule land. The District judge, Korba, by the impugned order dated 29 -8 -2008 allowed the application partly by appointing a commissioner for spot inspection in respect of the present status of the possession on the petition schedule land. Thus, this petition by the petitioners/defendants on the ground that the order dated 5 -4 -2008 (Annexure P/8) passed by the District Judge, in an application filed under Order 39, Rule 1 and 2 of the CPC, where prima facie, finding with regard to the possession of the property has been given, operates as res judicata. Thus, no order ought to have been passed in subsequent application filed under Order 39 Rule 7 read with Order 26 Rule 9 of the CPC.

(3.) MR . Sanjay S. Agrawal, learned counsel appearing for the petitioners submits that the commission cannot be appointed to determine the possession the property and the Court ought to have decided the possession by proper evidence and documents.