Punjab-Haryana High Court
Sudesh Jain vs State Of Haryana And Others on 11 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
CR No.1412 of 2024 1 2024:PHHC:033824
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
132 CR No.1412 of 2024
Reserved on : 05.03.2024
Date of Decision : 11.03.2024
Smt. Sudesh Jain ....Petitioner
VERSUS
State of Haryana and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Ojas Bansal, Advocate for the petitioner.
ALKA SARIN, J.
1. The present revision petition under Article 227 of the
Constitution of India has been filed challenging the order dated 04.12.2023
passed by the Additional Civil Judge (Senior Division), Sonepat whereby the
application filed by the plaintiff-petitioner for appointment of a Local
Commissioner has been dismissed.
2. Brief facts relevant to the present lis are that the plaintiff-
petitioner filed a suit for possession and mandatory injunction and for
direction to the defendant-respondents to hand over vacant possession of the
encroached land of the plaintiff-petitioner alleging therein that the plaintiff-
petitioner is owner of the land falling in Khasra Nos.8817/8619/4561 total
measuring 5B-12B situated in the revenue estate of Patti Musalmanan,
Sonipat in Khewat No.2516, Khata No.3443 and that the defendant-
respondents have encroached upon an area of 950 sq. yards (0B-19B) owned
by the plaintiff-petitioner. During the pendency of the suit, the plaintiff-
integrity of this order/judgment
CR No.1412 of 2024 2 2024:PHHC:033824
petitioner filed an application under Order XXVI Rule 9 CPC for
appointment of a Local Commissioner for demarcation of the land
encroached upon by the defendant-respondents. It was stated in the
application that though the demarcation was got done by the plaintiff-
petitioner prior to institution of the suit but since the defendant-respondents
have denied any such demarcation in their written statement, it was
necessary to file an application for appointment of a Local Commissioner.
Separate replies were filed by defendant-respondent Nos.1 to 3 and
defendant-respondent No.12 to the application and vide the impugned order
the said application was dismissed on the ground that once the plaintiff-
petitioner has already relied upon a demarcation report placed on record by
her, no ground is made out to get the demarcation done again.
3. Learned counsel for the plaintiff-petitioner 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 04.12.2023. In
support of his arguments learned counsel for the plaintiff-petitioner has
relied upon judgment of this Court in the case of M/s Allwin Infrastructure
Ltd. vs. M/s Maxxus Developers & Ors. [2021(1) RCR (Civil) 177].
4. I have heard learned counsel for the plaintiff-petitioner.
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
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CR No.1412 of 2024 3 2024:PHHC:033824
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
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
integrity of this order/judgment
CR No.1412 of 2024 4 2024:PHHC:033824
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. The judgment relied upon by learned counsel for the plaintiff-
petitioner in M/s Allwin's case (supra) would be of no avail inasmuch as in
the said case the revision petition was filed against the order allowing an
application for appointment of a Local Commissioner.
8. In the present case the plaintiff-petitioner is seeking
appointment of a Local Commissioner for demarcation of the property
whereas the entire case of the plaintiff-petitioner in the plaint is for
possession and mandatory injunction. That being so, it is for the plaintiff-
petitioner to prove her case and she cannot take the aid of the Court agency
for creating evidence for her. In the present case prima facie there does not
appear to be any dispute regarding demarcation of the land inasmuch as the
suit simpliciter is for possession and mandatory injunction.
9. In view of the above, I do not find any merits in the present
revision petition which is accordingly dismissed. Pending applications, if
any, also stand disposed off.
( ALKA SARIN )
11.03.2024 JUDGE
jk
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment
