ORDER No. 06 Date: 21/07/2023
This case is taken up for consideration for passing order in respect of the petition filed by the complainant/applicant side in the matter of appointment of Engineer Commissioner for local inspection on the schedule mentioned property which has been described in the complaint petition.
This matter is contested by the OPs by filing written objection.
The argument highlighted by the Ld. Advocates of both sides has been heard in full.
It is the main point of contention and argument of the Ld. Advocate of the complainant/applicant side is that the Ops have not yet specifically allocated the portion of the complainant/applicant who is the owner of the suit property and for the interest of measurement of the suit property and to determine the allotted portion of the complainant/applicant there is necessity of conducting the engineer commission over the suit property.
It is pointed out and/or argued by the OPs that the complainant/applicant side is trying to fish out and/or collect evidence in support of their case but this practice should not be encouraged by the court of law. More so, the judgment has not yet been passed by this District Commission and so there is no question of appointment of Engineer Commissioner for the purpose of measuring the allocated area of the complainant/applicant in the suit property. It has also been argued by the Ld. Advocate for the Ops that the petition filed by the complainant/applicant in the matter of appointment of Engineer Commission is defective and it is not maintainable. For all these reasons the Ops of this M. A. Case has been praying before this District Commission for rejecting the said petition which has been filed for appoint of Engineer Commissioner.
For the interest of arriving at just and proper decision in respect of the above noted prayer of the complainant/applicant side, it is very important to note that it is the settled principle of law that a qualified engineer/architecture can be appointed to carry out investigation followed by tests/analysis if it is felt necessary by him and to support the physical features of the subject flat including as to whether one or more of the works mentioned in the complaint are still pending execution/completion or not. This local principle has been observed by the Hon’ble National Commission and it is reported in 2015(2)C.P.R.99. On the background of the above noted settled principle of law this District Commission after going through the materials of the case record finds that there is also necessity of conducting the local investigating commission for taking measurement of entire suit property and also for taking measurement of the allotted area in favour of the complainant/applicant. Moreover, for the interest of proper and complete adjudication of this case the prayer of the complainant/applicant for appointment of Engineer Commission for local investigation over the schedule mentioned property of the complaint petition can be allowed.
In the result, it is accordingly,
Ordered
That the prayer of the complainant/applicant for appointment of the Engineer Commissioner for local inspection of the schedule mentioned property of complaint petition is allowed on contest. Let Mithun Dhali be appointed as Ld. Commissioner for taking measurement of the suit property and also for noting the local features of the suit property.
Let Rs.4,000/- only be fixed as fees of the Ld. Engineer Commissioner.
The complainant side is directed to pay the fees of the Ld. Commissioner positively within 23/08/2023, thereafter writ of commission is to be issued.
The complainant/applicant side is also directed to handover the papers and documents to the Ld. Commissioner for conducting the said commission work.
In the light of the observation made above, the M. A. Case being No. 26/2023 is disposed of on contest.
Fix 23/08/2023 for payment of fees of the Ld. Commissioner and issuing writ of commission.
Dictated & corrected by me.
President
