Punjab-Haryana High Court
Sawamberjit Singh Alias Swamberjit ... vs Rasal Singh And Others on 20 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:040546
124
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-507-2024 (O&M)
Date of decision : 20.03.2024
Sawamberjit Singh @ Swamberjit Singh & Ors. ... Petitioner(s)
Versus
Rasal Singh & Ors. ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Lupil Gupta, Advocate for the petitioners.
ALKA SARIN, J. (ORAL)
1. The present revision petition under Article 227 of the Constitution of India has been filed challenging the order dated 15.11.2023 (Annexure P-7) passed by the Additional Civil Judge (Junior Division), Patti, District Tarn Taran whereby the application filed by defendant- petitioners for appointment of a Local Commissioner has been dismissed.
2. Brief facts relevant to the present lis are that plaintiff- respondent Nos.1 and 2 filed a suit for possession by way of partition by metes and bounds in respect of the property measuring 0-55 marlas i.e. 2 kanals 15 marlas bearing Khata Khatoni Nos.1836/2553, 1837/2554 Rect. and Killa Nos.142//7/1/2/1 (1-12), 142//7/1/2/2 (1-3) as per jamabandi for the year 2008-09 fully described in the plaint with consequential relief of permanent injunction. During the pendency of the suit, the defendant- Yogesh Sharma 2024.03.21 10:33 I attest to the accuracy and integrity of this order/judgment.
High Court Chandigarh
2024:PHHC:040546
CR-507-2024 (O&M) -2-
petitioners filed an application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 for appointment of a Local Commissioner for submitting his report about the actual and factual position at the spot. Reply was filed to the said application and vide the impugned order the said application was dismissed on the ground that it is for the defendant-petitioners to prove their case and that by appointing a Local Commissioner the Court could not assist the defendant-petitioners in collecting the evidence.
3. Learned counsel for the defendant-petitioners would contend that for ascertaining the factual position at the spot the appointment of a Local Commissioner was necessary and the application has wrongly been dismissed by the Trial Court vide the impugned order dated 15.11.2023.
4. I have heard learned counsel for the defendant-petitioners.
5. In the present case the challenge is to the order dismissing an application for appointment of the Local Commissioner. A Division Bench of this Court in the case of Pritam Singh Vs. Sunder Lal [1990(2) PLR 191] inter-alia held as under :
"6. After going through the judgments cited in the reference order, we do not find that the earlier judgment in Harvinder Kaur's case (supra) requires any reconsideration. The order refusing to appoint a local commissioner does not decide any issue, nor adjudicates rights of the parties for the purpose of the suit and is, therefore, not revisable. The distinction sought to be Yogesh Sharma 2024.03.21 10:33 I attest to the accuracy and integrity of this order/judgment.
High Court Chandigarh
2024:PHHC:040546
CR-507-2024 (O&M) -3-
made by the learned Single Judge in view of the judgment in M/s Sadhu Ram Bali Ram's case (supra) was clearly noticed by the Division Bench in Harvinder Kaur's case (supra) and it was observed:
"It may be observed that the facts of M/s Sadhu Ram Bali Ram's case were different as in that case the onus of an issue had been wrongly placed and while deciding that question, it was held that such an order would be revisable."
Apart from that, placing the onus of an issue has something to do with the rights of the parties whereas refusing to appoint a Commission under Order 26, Rule 9, Code of Civil Procedure, has nothing to do with the rights of the parties as such. It is the discretion of the Court to appoint a Commission there under and if the Court refuses to appoint a Commission, then no right of any party can be said to be prejudiced as such."
6. Similar view has been taken by this Court in the case of Smt. Raksha Devi Vs. Madan Lal & Ors. [2017(3) PLR 249] wherein it has categorically been held that no revision would be maintainable against an order dismissing an application for appointment of a Local Commissioner. It is trite that an order refusing to appoint a Local Commissioner does not decide any issue nor does it adjudicate any rights of the parties for the purpose of the suit and hence would not be a revisable order.
7. In view of the law laid down by the Division Bench of this Court in case of Pritam Singh (supra) holding that no revision would be Yogesh Sharma 2024.03.21 10:33 I attest to the accuracy and integrity of this order/judgment.
High Court Chandigarh
2024:PHHC:040546
CR-507-2024 (O&M) -4-
maintainable against an order dismissing an application for appointment of a Local Commissioner as the order refusing to appoint a Local Commissioner does not decide any issue nor does it adjudicate any rights of the parties for the purpose of the suit, I do not find any merit in the present revision petition which is accordingly dismissed. Pending applications, if any, also stand disposed off.
20.03.2024 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO Yogesh Sharma 2024.03.21 10:33 I attest to the accuracy and integrity of this order/judgment.
High Court Chandigarh