Ashok Kumar Bansal vs Parmod Ashri And Anr
2022 Latest Caselaw 16654 P&H

CR-1651-2022                                               -1-


332    IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH

                                                    CR-1651-2022
                                                    Decided on : 13.12.2022

Ashok Kumar Bansal                                         ...... Petitioner

                                   Versus

Parmod Ashri and another                                   ...... Respondents

CORAM : HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL

Present :   Mr. D.K.Gollen, Advocate
            for the petitioner.

            Mr. Chander Shekhar, Advocate and
            Mr. Manmohan Saroop, Advocate
            for respondents No.1 and 2.
                        ****

Manjari Nehru Kaul, J.(Oral)

The petitioner is impugning the order dated 13.10.2021

(Annexure P-3) passed by Civil Judge (Jr. Divn.) Jind vide which his

application filed under Order XXVI Rule 9 CPC r/w Section 151 CPC for

appointment of local commissioner was dismissed.

Learned counsel for the petitioner has vehemently argued that

the impugned order is contrary to the settled principles of law and thus,

deserves to be set aside. He has submitted that the trial Court while passing

the impugned order failed to appreciate that the report of the local

commissioner qua the possession over the suit property, after carrying out

demarcation would help in the just and effective adjudication of the issue in

dispute between the parties. He further submits that the respondents have

been trying to illegally dispossess the petitioner from the suit property and

have also been disputing their ownership, therefore, the appointment of a

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local commissioner would go a long way in assisting the Court to ascertain

the ownership of the suit property as per the title records and documents. In

support of his submissions, learned counsel has placed reliance upon the

judgment of Hon'ble Supreme Court in Haryana Waqf Board vs. Shanti

Sarup and others, 2008(8) SCC 671.

Per contra learned counsel for the respondents have

controverted the submissions made by counsel opposite and contended that

the revision petition against an order declining the appointment of a local

commissioner is per se not maintainable. He has further submitted that the

petitioner has instituted a suit for declaration qua the ownership, therefore,

the petitioner would have to lead evidence in support of his case and cannot

lean on the shoulders of the Court to collect evidence. In support of his

submissions, learned counsel has placed reliance upon the judgments of

Coordinate Bench of this Court in Deva Singh vs. Mohinder Singh and

others, 2022(3) RCR (Civil) 444, Rajiv Kumar Batra vs. Kashmiri Lal

Sika , 2010(6) RCR (Civil) 37 and Pritam Singh and others vs. Sunder Lal

and others, 1990 (2) PLR 191.

Heard learned counsel and perused the relevant material

available on record.

At the outset, it would be relevant to point out here that a

Division Bench of this Court in Pritam Singh and other's case(supra) has

held that a revision petition against an order refusing to appoint a local

commissioner would not be maintainable as the discretion to appoint a local

commissioner solely rests with the Court and still further, in case the Court

refuses to appoint a commission, no right of a party can be said to have been

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prejudiced.

Further more, the petitioner has instituted a suit for declaration

to the effect that he is joint owner and in possession of his share in the suit

property along with consequential relief of permanent injunction.

Therefore, it would be imperative upon the petitioner to lead evidence to

prove his ownership as well as his possession over the suit property. Local

commissioner, no doubt, can be appointed by a Court but only if it deems fit

to elucidate any point in case of any doubt after the parties have led their

respective evidence. Local commissioner can certainly not be appointed to

collect evidence on behalf of the parties.

In the circumstances as enumerated hereinabove, this Court

does not find any illegality much less perversity in the impugned order. The

case law relied upon by the learned counsel for the petitioner would not

come to his rescue as in that case, the High Court had decided a Regular

Second Appeal summarily without going into the aspect of appointment of a

local commissioner. Moreover, the facts of the case therein are clearly

distinguishable from the case in hand.

Accordingly, the present petition being devoid of any merit,

stands dismissed.

                                                (MANJARI NEHRU KAUL)
                                                        JUDGE
13.12.2022
sonia

              Whether speaking/reasoned:              Yes/No
              Whether reportable :                    Yes/No




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