# Durga Prasad & Ors v. Smt. Manju Singh & Anr

- **Citation:** (2022) 8 ILRA 429
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-17
- **Case number:** Matters under Art. 227 No. 3093 of 2022
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/durga-prasad-ors-v-smt-manju-singh-anr-48786
- **Pages:** 4

## Headnote

A. Civil Law - Practice and Procedure -
Code of Civil Procedure, 1908 - Order
XXVI Rule 10(2) - There is no requirement
in law, nor the legal provision permits any
of the parties to ask for summoning of the
Court
Commissioner
along
with
his
instruments to make actual demonstration
about the procedure followed by him in
conducting the survey. (Para 14)

Perusal of the Order 26 Rule 10 (2) of C.P.C.,
clearly demonstrate that the said provision
provides
for
cross-examination
of
Court
Commissioner on any of the point including the
point as to the manner and procedure which
had been followed or adopted by the Court
Commissioner in conducting the survey. The
aforesaid provision does not permit any of
the parties to submit application for
summoning the Court Commissioner along
with
instruments
to
make
actual
demonstration in the Court as regards the
procedure adopted by him in conducting
the survey. If any of the party is not satisfied
with the survey report submitted by the Survey
Commissioner, it may put a question in crossexamination
regarding
the
manner
and
procedure adopted by him in conducting the
survey. The issue can be very much determined
from the reply of the Court Commissioner to the
question put by any of the parties in crossexamination regarding the procedure adopted
by the Court Commissioner in conducting the
survey. (Para 13)

The
cross-examination
of
the
Court
Commissioner is still continuing and has not yet
closed. In such view of the fact, the petitioners
have still an opportunity to put relevant
question to the Court Commissioner to prove
that the report of the Survey Commissioner is
wrong or incorrect. (Para 15)

B. This Court finds that the finding of the
revisional court that the application filed
by the petitioners has been filed only to
linger on the suit is based upon proper
appreciation of facts on record. The
petitioners have instituted the suit in the year
2007
and
first
application
for
Survey
Commissioner was filed in the year 2011 and
uptill 2017 two more applications, i.e., total
three applications for appointment of Survey
Commissioner have been filed by the petitioners
and more than 15 years have passed, yet the
suit has not proceeded because of the lingering
device adopted by the petitioners, so that the
Court may not proceed to decide the suit. (Para
16)
430 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ petition dismissed. (E-4)

Present
petition
assails
order
dated
22.02.2022, passed by Civil Judge (Junior
Division), Jhansi.

## Text

8 All. Durga Prasad & Ors. Vs. Smt. Manju Singh & Anr.
429

7. Once the proceedings in respect of
notice under Section 129(3) of the Act stood
concluded in terms of Section 129(5) of the
Act read with Rule 142(3) of the Rules, no
mandamus can be issued to the respondent
no. 3 to pass an order under Section 129(3) of
the CGST/UPGST/IGST Act.

8. The contention of the petitioner that a
copy of the order under Section 129(3) of the
CGST/UPGST/IGST, Act be provided to
him, is wholly misconceived inasmuch as the
proceedings stood concluded in terms of subsection (5) of Section 129 read with Rule 142
(3) of the Rules and, therefore, no mandamus
contrary to law can be issued in exercise of
powers conferred under Article 226 of the
Constitution of India.

9. For all the reasons aforestated, the
writ petition is dismissed.
----------
(2022) 8 ILRA 429
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters under Art. 227 No. 3093 of 2022

Durga Prasad & Ors. ...Petitioners
Versus
Smt. Manju Singh & Anr. ...Respondents

Counsel for the Petitioners:
Sri Rishikesh Tripathi

Counsel for the Respondents:
Ms. Rama Goel Bansal, Ms. Shalini Goel

A. Civil Law - Practice and Procedure -
Code of Civil Procedure, 1908 - Order
XXVI Rule 10(2) - There is no requirement
in law, nor the legal provision permits any
of the parties to ask for summoning of the
Court
Commissioner
along
with
his
instruments to make actual demonstration
about the procedure followed by him in
conducting the survey. (Para 14)

Perusal of the Order 26 Rule 10 (2) of C.P.C.,
clearly demonstrate that the said provision
provides
for
cross-examination
of
Court
Commissioner on any of the point including the
point as to the manner and procedure which
had been followed or adopted by the Court
Commissioner in conducting the survey. The
aforesaid provision does not permit any of
the parties to submit application for
summoning the Court Commissioner along
with
instruments
to
make
actual
demonstration in the Court as regards the
procedure adopted by him in conducting
the survey. If any of the party is not satisfied
with the survey report submitted by the Survey
Commissioner, it may put a question in crossexamination
regarding
the
manner
and
procedure adopted by him in conducting the
survey. The issue can be very much determined
from the reply of the Court Commissioner to the
question put by any of the parties in crossexamination regarding the procedure adopted
by the Court Commissioner in conducting the
survey. (Para 13)

The
cross-examination
of
the
Court
Commissioner is still continuing and has not yet
closed. In such view of the fact, the petitioners
have still an opportunity to put relevant
question to the Court Commissioner to prove
that the report of the Survey Commissioner is
wrong or incorrect. (Para 15)

B. This Court finds that the finding of the
revisional court that the application filed
by the petitioners has been filed only to
linger on the suit is based upon proper
appreciation of facts on record. The
petitioners have instituted the suit in the year
2007
and
first
application
for
Survey
Commissioner was filed in the year 2011 and
uptill 2017 two more applications, i.e., total
three applications for appointment of Survey
Commissioner have been filed by the petitioners
and more than 15 years have passed, yet the
suit has not proceeded because of the lingering
device adopted by the petitioners, so that the
Court may not proceed to decide the suit. (Para
16)
430 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ petition dismissed. (E-4)

Present
petition
assails
order
dated
22.02.2022, passed by Civil Judge (Junior
Division), Jhansi.

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
petitioners and Ms. Rama Goel, learned
counsel for the respondents.

2. The petitioners, by means of the
present writ petition, have assailed the
order dated 22.02.2022 passed by the Civil
Judge (Junior Division), Jhansi in Original
Suit No.69 of 2007, by which the
application
of
the
petitioners
being
application No.493D for summoning the
Survey Commissioner with 'Guniya and
Prakar (Compass)' to demonstrate the
procedure before the Court as to how he
had measured the property in question
during survey has been rejected and the
order dated 22.03.2022 passed by the
District
Judge,
Jhansi
in
Civil
Revision/Misc.
Case
No.35
of
2022
affirming the order passed by the trial
Court dated 22.02.2022.

3. The petitioner no.1 instituted an
Original Suit No.69 of 2007 (Durga Prasad
Vs. Smt. Manju Singh and another) praying
for cancellation of sale deed dated
22.03.2007 in respect of plot No.675/6 and
permanent
injunction
restraining
the
respondents from interfering with the
peaceful possession of the petitioners in the
property in dispute.

4. It appears that in the suit, three
times Survey Commissioner has been
appointed. The last Survey Commissioner
was appointed in the year 2017 for
surveying the property in dispute on the
application of the petitioners. The Survey
Commissioner submitted his report on
31.03.2017.

5. The petitioners being dissatisfied
with the Survey report submitted by the
Survey
Commissioner,
filed
objection
under Order XXVI Rule 10 (2) of C.P.C.
The Survey Commissioner was summoned
for cross examination and the cross
examination of the Survey Commissioner is
continuing and has not yet closed. During
the
cross
examination
of
Survey
Commissioner, the petitioner submitted
application 493D praying that the Survey
Commissioner be summoned with 'Guniya
and Prakar (Compass)' to demonstrate as to
what
procedure
he
had
adopted
in
surveying the property in question.

6. The said application of the
petitioners has been rejected by the trial
Court vide order dated 22.02.2022 holding
that the Survey Commissioner is of 74
years of age and he is old, therefore, it is
not proper to summon him with 'Guniya
and Prakar (Compass)' to demonstrate as to
how he surveyed the property in question.
Consequently, the trial Court found no
merit in the application and dismissed the
same.

7. The revisional court by order dated
22.03.2022 affirmed the order passed by
the trial Court dated 22.02.2022. The
revisional court while rejecting the revision
gave an independent finding holding that
the first Survey Commission application
was filed on behalf of the petitioners in the
year 2011 and the same was allowed and
this is the third Survey Commissioner
Report which was submitted on 31.03.2017
and is pending for disposal since then.

8. The revisional court further held
that it is not in dispute that petitioners
8 All. Durga Prasad & Ors. Vs. Smt. Manju Singh & Anr.
431
submitted
application
for
crossexamination
of
Survey
Commissioner
under the provisions of Order 26 Rule 10
(2) of C.P.C. and the cross-examination of
the Survey Commissioner started on
18.09.2021 and is still continuing. The
revisional court further held that it is clear
from the record that it is still open to the
parties
to
cross-examine
the
Survey
Commissioner as per the provisions of
Order 26 Rule 10 (2) of C.P.C. as the cross
examination of Survey Commissioner has
not
yet
been
closed,
therefore,
the
opportunity to cross-examine the Survey
Commissioner
has
not
been
closed.
Accordingly, it held that appropriate
question may be asked by the petitioners in
cross-examination
from
the
Survey
Commissioner
regarding
procedure
followed by the Survey Commissioner, and
the application has been filed only to delay
in disposal of the suit.

9. Challenging the said order, learned
counsel for the petitioners has submitted
that the reading of Order 26 Rule 10 (2) of
C.P.C. clearly demonstrates that any party
can ask for Court Commissioner to
demonstrate the manner and procedure
which he had followed in conducting the
survey, so that true facts may come on
record before the Court in order to ascertain
whether the Court Commissioner has
followed the right procedure in conducting
the sruvey.

10. Per contra, learned counsel for the
respondents would contend that perusal of
Order 26 Rule 10 (2) of C.P.C. would
demonstrate that the Court Commissioner
can be cross-examined by any party on any
of the questions or points as referred in
Order 26 Rule 10 (2) of C.P.C. The said
provision does not permit any of the parties
to move an application to summon the
Court
Commissioner
along
with
his
instruments to demonstrate the manner and
procedure which he had followed in
conducting the survey.

11. It is contended that the Order 26
Rule 10 (2) of C.P.C. clearly provides that
any question in respect of the manner and
procedure
adopted
by
the
Court
Commissioner in conducting the survey can
be asked, and on being asked such question
if answer to such question reflects that
correct procedure has not been followed by
the Survey Commissioner, it can be proved
that the report of Survey Commissioner is
not correct.

12. Be that as it may, to appreciate the
controversy in hand, it would be apt to refer
the Order 26 Rule 10 (2) of C.P.C. which
reads as under:-

"10 (2) Report and depositions to be
evidence in suit- The report of the
Commissioner and the evidence taken by
him (but not the evidence without the
report) shall be evidence in the suit and
shall form part of the record; but the Court
or, with the permission of the Court, any of
the parties to the suit may examine the
Commissioner personally in open Court
touching any of the matters referred to him
or mentioned in his report, or as to his
report, or as to the manner in which he has
made the investigation."

13. Perusal of the Order 26 Rule 10
(2) of C.P.C., quoted above, clearly
demonstrate
that
the
said
provision
provides for cross-examination of Court
Commissioner
on
any
of
the point
including the point as to the manner and
procedure which had been followed or
adopted by the Court Commissioner in
conducting the survey. The aforesaid
432 INDIAN LAW REPORTS ALLAHABAD SERIES
provision does not permit any of the parties
to submit application for summoning the
Court
Commissioner
along
with
instruments to make actual demonstration
in the Court as regards the procedure
adopted by him in conducting the survey. If
any of the party is not satisfied with the
survey report submitted by the Survey
Commissioner, it may put a question in
cross-examination regarding the manner
and
procedure
adopted
by
him
in
conducting the survey. The issue can be
very much determined from the reply of the
Court Commissioner to the question put by
any of the parties in cross-examination
regarding the procedure adopted by the
Court Commissioner in conducting the
survey.

14. In the opinion of the Court, there
is no requirement in law, nor the aforesaid
provision permits any of the parties to ask
for summoning of the Court Commissioner
along with his instruments to make actual
demonstration
about
the
procedure
followed by him in conducting the survey.

15.

Learned
counsel
for
the
petitioners could not dispute that the crossexamination of the Court Commissioner is
still continuing and has not yet closed. In
such view of the fact, the petitioners have
still an opportunity to put relevant question
to the Court Commissioner to prove that
the report of the Survey Commissioner is
wrong or incorrect.

16. At this stage, it is pertinent to mention
that the petitioners have instituted the suit
in the year 2007 and first application for
Survey Commissioner was filed in the year
2011
and
uptill
2017
two
more
applications, i.e., total three applications for
appointment of Survey Commissioner have
been filed by the petitioners and more than
15 years have passed, yet the suit has not
proceeded because of the lingering device
adopted by the petitioners, so that the Court
may not proceed to decide the suit. Thus,
this Court finds that the finding of the
revisional court that the application filed by
the petitioners has been filed only to linger
on
the
suit
is
based
upon
proper
appreciation
of
facts
on
record.
Accordingly, this Court does not find any
infirmity in the order passed by the revional
court as well as trial court.

17. Thus, for the reasons given above,
the writ petition lacks merit. It is
accordingly, dismissed with no order as to
costs.
----------
(2022) 8 ILRA 432
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE VIVEK KUMAR SINGH, J.

Crl. Misc. Anticipatory Bail Appl. No. 340 of 2021

Gaurav Khanna & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Sri Mithilesh Kumar Shukla, Sri Avanish Kumar
Shukla

Counsel for the Opp. Party:
G.A., Sri Sharad Kumar Srivastava, Sri Sharad
Kumar Srivastava

A. Criminal Law - Code of Criminal
Procedure,
1973
-
Section
438
-
Anticipatory Bail is to continue only till the
court summons the accused based on charge
sheet. Hence, application u/S 438(1) Cr.P.C.
is not maintainable and it is open for the
applicants to seek regular bail u/S 439
Cr.P.C.