Mahender Kumar And Others vs Seemawati And Others
2022 Latest Caselaw 7647 P&H

                      121
                                IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                               CHANDIGARH
                                                     -.-
                                                                 CR-2781-2022 (O&M)
                                                           Date of Decision : 25.07.2022


                      Mahender Kumar and Others                                        ...Petitioners

                                                      versus

                      Seemawati and Others                                           ...Respondents


                      CORAM :         HON'BLE MRS. JUSTICE ALKA SARIN

                      Present :       Mr. Vinay Kumar Pandey, Advocate for the petitioners.


                      ALKA SARIN, J. (Oral)

The present revision petition under Article 227 of the

Constitution of India has been filed challenging the order dated 26.02.2020

passed by the Court of Civil Judge (Jr. Division), Ferozepur Jhirka, District

Nuh whereby the application filed by the petitioners for appointment of Local

Commissioner has been dismissed.

Learned counsel for the plaintiff-petitioners would contend that

the plaintiff-petitioners filed a suit for possession and mandatory injunction

directing the defendant-respondents to remove the encroachment made by

them on the suit property and to restore the same to its original position.

However, the defendant-respondents have denied the encroachment over the

suit property and hence it was necessary to appoint a Local Commissioner in

order to bring out the existing state of affairs. Vide the impugned order dated

26.02.2020 the application for appointment of the Local Commissioner was

rejected on the ground that a Local Commissioner cannot be appointed to

collect evidence in favour of one of the parties. The learned counsel for the TRIPTI SAINI 2022.07.26 11:33 I attest to the accuracy and authenticity of this document CR-2781-2022 (O&M) -2-

plaintiff-petitioners would contend that the case was still at the initial stage

and hence the appointment of a Local Commissioner would put the issue at

rest.

I have heard learned counsel for the plaintiff-petitioners.

In the present case the suit, as per learned counsel for the

plaintiff-petitioners, is still at the initial stage. The Court process cannot be

used in order to collect evidence on behalf of either of the parties. There is

also no explanation forthcoming for the delay in challenging the impugned

order and approaching this Court after a period of over two years.

Further the challenge in the present petition is to the order

dismissing the application for appointment of a 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 getting through the Judgments cited in the

reference order, we do not find that the earlier Judgment

in Harvinder Kaur's case (supra) requires any re

consideration. 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 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 :

TRIPTI SAINI 2022.07.26 11:33 I attest to the accuracy and authenticity of this document CR-2781-2022 (O&M) -3

"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."

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.

In view of the law laid down, I do not find any merit in the

present petition, which is accordingly dismissed. Pending applications, if

any, also stand disposed off.

TRIPTI SAINI
2022.07.26 11:33
I attest to the accuracy and
authenticity of this document
                       CR-2781-2022 (O&M)                                      -4-

However, it is clarified that any observations made herein shall

not be treated as an expression of opinion on the merits of the case and the

plaintiff-petitioners shall always be at liberty to lead their evidence in

accordance with law.

                      March 25, 2022                                    (ALKA SARIN)
                      tripti                                               JUDGE

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

TRIPTI SAINI 2022.07.26 11:33 I attest to the accuracy and authenticity of this document