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Prem Singh v. sohan Singh - CR-5490-2004  RD-P&H 4628 (21 July 2006)
C.R. No. 5490 of 2004
Date of decision:28-7-2006
Prem Singh ..........Petitioner
sohan Singh ........Respondent
CORAM: Hon'ble Mr.Justice Vinod K.Sharma
Present: Mr.Gaurav Chopra, Advocate, for the petitioner.
Mr. Jaideep Walia, Advocate, for the respondent.
2004 passed by the learned Civil Judge (Jr.Divn.), Rupnagar, allowing the application filed by the defendant-respondent seeking direction to the plaintiff to allow the expert to inspect the property in dispute.
The plaintiff-petitioner had filed a suit for recovery of Rs. 2 lacs as damages against the defendant for constructing the house wrongly which rendered the building as weak and unsafe.
The defendant-respondent contested the suit and by way of counter claim claimed a sum of Rs. 3600/- along with interest from the plaintiff towards payment due for the job undertaken by him.
The learned Civil Judge (Jr. Divn.), Rupnagar by way of judgment and decree dated 21-9-2000 decreed the suit of the plaintiff for recovery of Rs. 2 lacs. The counter claim filed by the defendant was allowed. The defendant-respondent filed an appeal against the judgment and decree before the District Judge, Rupnagar, wherein he moved an application for appointment of a Local Commissioner to assess the actual loss C.R. No.5490 of 2004
suffered by the plaintiff-petitioner, if any.
The learned District Judge on the basis of the averments made in the application, accepted the appeal as well as the application for appointment of a Local Commissioner and set aside the judgment and decree and remanded the case back to the trial Court with a direction to appoint a technical person as Local Commissioner directing him to report about the actual loss suffered by the plaintiff-petitioner. The directions were also issued to the trial Court to decide the case afresh after giving opportunity to both the parties. Though it is doubtful whether such an order could be passed by the District Judge in an appeal filed against the judgment and decree of the trial Court, still this Court is not concerned with it, as the said order was not challenged by either of the parties and has attained finality. As per the directions issued by the learned District Judge, Rupnagar, Shri Mohan Lal Sharma, Junior Engineer Provincial Sub Division, PWD (B&R), Ropar, was appointed as Local Commissioner with the consent of the parties. It was directed that the premises be inspected after issuing notice to the party concerned of the date and time of his proposed visit to the spot and was also directed to submit his report regarding the actual loss suffered by the plaintiff-petitioner. The Local Commissioner submitted his report on 22-7-2002 after inspecting the premises on 19-7-2002.
The petitioner herein filed objections against the said report which were contested by the defendant-respondent by way of his reply asserting therein that the report was rightly made. Thereafter an application was moved on 3-6-2004 by the defendant-respondent seeking C.R. No.5490 of 2004
permission to permit Shri Gurmail Singh, a retired S.D.O. to make the inspection of the house. The said application was contested by the plaintiff- petitioner by taking a preliminary objection that M/s Sadhu Construction Company Engineers & Contractors, were appointed as expert, who had visited the suit property and independently submitted the report on 10th of
May 1997. The said report was proved on file without any objection from the defendant-respondent. The learned trial Court had accepted the said report and decreed the suit. It was further pleaded that even after the remand of the matter, Shri Mohan Lal Sharma, Junior Engineer, was appointed as a Local Commissioner with the consent of the parties, who had already submitted his report and on this ground it was the stand of the plaintiff-petitioner that Shri Gurmail Singh, S.D.O. cannot be appointed as an expert at this belated stage.
The learned trial Court on the basis of the order passed by the learned District Judge came to the conclusion that as opportunity was to be provided to the parties to prove their case, therefore, it would be in consonance with the said order that the defendant-respondent be also allowed to produce his expert to inspect the suit property and submit his report. It was held that the expert could be examined by the defendant if he inspected the disputed property. In view of these observations, the application was allowed.
Mr. Gaurav Chopra, learned counsel for the petitioner, challenged the impugned order being without jurisdiction. His contention is that there was no occasion for the defendant to produce an expert now after the report by Shri Mohan Lal Sharma, Junior Engineer.
C.R. No.5490 of 2004
The learned counsel for the respondent, however, contends that the defendant in order to lead his evidence had every right to produce an expert after inspecting the premises.
I have considered the arguments raised by the learned counsel for the parties and find that the impugned order cannot be sustained.
It is not in dispute that the decree passed in favour of the plaintiff-petitioner was set aside by the learned Additional Juge, Rupnagar, merely on an application moved by the defendant-respondent for appointment of an expert to inspect the property in dispute and submit his report. In pursuance to the said order, Shri Mohan Lal Sharma, Junior Engineer was appointed as an expert to submit his report, who inspected the spot in the presence of the parties and submitted his report. For all intents and purposes, he was an expert having been appointed by the defendant- respondent as his appointment was in pursuance to the application made by the defendant-respondent in he Court of Additional District Judge. It is also to be noticed that the objections raised by the plaintiff-petitioner against his report were contested by the defendant-respondent. Once an expert, who is witness of defendant-respondent, has already been examined, there was no occasion for the defendant-respondent to examine any other expert on the same subject matter especially when the earlier expert was appointed with the consent of the parties. The learned trial Court has not considered this important aspect of matter and, therefore, it can safely be concluded that the trial Court has exercised the jurisdiction vested in it with immaterial irregularity. The learned trial Court had no jurisdiction to allow another expert to be examined after the one expert on the application of the C.R. No.5490 of 2004
defendant-respondent had already been examined. Therefore, the impugned order is liable to be set aside.
In view of what has been stated above, the present revision petition is allowed and the impugned order is set aside with no order as to costs.
July 28 ,2006 (VINOD K.SHARMA)
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