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Heera Lal Shaw v. Dr. Saimual Victer Lal - WRIT - C No. 48703 of 2003 [2005] RD-AH 6243 (23 November 2005)


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                                                                                       Court No.38

Civil Misc. Writ Petition No. 48703  of 2004

Heera Lal Shaw Vs. Dr. Saimual Victer Lal

Hon'ble Vineet Saran, J

In a suit filed before the Civil Judge (Senior Division), Gorakhpur an Advocate Commissioner was appointed, who submitted his report. By an order dated 28.7.2004, the said report of the Commissioner had been accepted after recording a finding that the discrepancy in the measurement of the land given in the report was because of human error. Aggrieved by the said order, the petitioner filed a Civil Revision No. 198 of 2004 before the District Judge, Gorakhpur which has been rejected summarily on the ground that in view of the decision of this Court in the case of Satyendra Prasad Jain and others Vs. State of U.P. and others 1995(1) A.W.C. 584, the revision against the order accepting or rejecting the Commissioner's report would not be maintainable. Aggrieved by the aforesaid order the petitioner has filed this writ petition.

I have heard Sri V.B.Khare and Sri A.K.Shukla, learned counsel appearing for the petitioner as well as Sri R.S.Parihar, learned counsel appearing for the respondent and perused the record. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the admission stage itself.

By the acceptance of the report of Advocate Commissioner, wherein according to the petitioner there is discrepancy with regard to the measurement of the land in question, the rights of the petitioner would be affected causing irreparable injury to the petitioner. Thus, in my view, it cannot be said that the case of the petitioner would not be covered under the clause (ii) of second proviso to Section 115 C.P.C. I have perused the decision in the case of Satyendra Prasad Jain (Supra). In the said judgment this Court declined to interfere with the order impugned in the said revision on the ground that the applicant had failed to demonstrate existence of any irreparable injury amounting to failure of justice in case if the order was allowed to stand. It has not been held that the revision would not be maintainable against an order accepting or rejecting the Commissioner's report. Thus, the aforesaid decision, as relied by the learned District Judge, does not apply to this case.

 Learned counsel for the petitioner has placed reliance on a decision rendered in the case of Ghurhu Vs. Xth Additional District Judge, Varanasi and others 2004 (1) A.W.C.259, wherein it was held that if the acceptance or rejection of the Commissioner's report would cause irreparable injury to the petitioner amounting to failure of justice, a revision against the said order would be maintainable.  Since I am of the view that acceptance of the said report dated 28.7.2004 may cause irreparable injury to the petitioner, the learned District Judge has wrongly rejected the revision summarily only on the ground that the revision was not maintainable. Accordingly the order dated 22.9.2004 is liable to be set aside and is hereby quashed. The matter is remanded back to the revisional court for deciding the matter a fresh, in accordance with law, without being influenced of any of the observations made herein above by this Court on merits. Learned counsel for the parties agree that the parties shall appear before the District Judge, Gorakhpur on 15.12.2005.  Since the suit is of the year 1991, it is directed that the revisional court shall hear and decide the revision on merits after giving an opportunity to both the parties, expeditiously, preferably within a period of four months from the date of filing of a certified copy of this order, without granting any unnecessarily adjournment to either of the party.

In the result, this writ petition stands allowed. No order as to costs.

Let certified copies of this order be given to the learned counsel for the parties within a week on payment of usual charges.




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