Punjab-Haryana High Court
Vijay Laxmi vs Kanta Garg And Others on 20 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:040545
120
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-5643-2023 (O&M)
Date of decision : 20.03.2024
Vijay Laxmi ... Petitioner(s)
Versus
Kanta Garg & Ors. ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Rajeev Kaswan, Advocate for the petitioner.
ALKA SARIN, J. (ORAL)
1. The present revision petition under Article 227 of the
Constitution of India has been filed for issuance of directions to respondent
Nos.1 and 2 to stop the illegal construction activities and further direction to
respondent No.3 to take appropriate legal action against respondent Nos.1
and 2 and to accept the application for appointment of Local Commissioner
which has been dismissed vide order dated 31.05.2023 (Annexure P-4)
passed by the Civil Judge (Junior Division), Sirsa.
2. Brief facts relevant to the present lis are that the plaintiff-
petitioner filed a suit for permanent injunction for restraining the defendant-
respondents from constructing H.No.106-A, C-Block, Sirsa. During the
pendency of the suit, the plaintiff-petitioner filed an application under Order
XXVI Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 for
integrity of this order/judgment.
2024:PHHC:040545
CR-5643-2023 (O&M) -2-
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 plaintiff-petitioner to prove his case and that by
appointing a Local Commissioner the Court could not assist the plaintiff-
petitioner in collecting the evidence. It has also been noticed in the order
dated 31.05.2023 that defendant-respondent No.3 - Municipal Council - has
already submitted its report regarding the spot inspection of the property
vide order dated 02.05.2023.
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 31.05.2023
(Annexure P-4).
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
in Harvinder Kaur's case (supra) requires any
reconsideration. The order refusing to appoint a local
commissioner does not decide any issue, nor adjudicates
integrity of this order/judgment.
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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
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 the present case the plaintiff-petitioner is seeking
appointment of a Local Commissioner for demarcation of the land, whereas
integrity of this order/judgment.
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the entire case of the plaintiff-petitioner in his plaint is for permanent
injunction restraining the defendant-respondents from making any
construction. That being so, it is for the plaintiff-petitioner to prove his case
and he cannot take aid of the Court agency for creating evidence for him.
8. 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.
20.03.2024 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment.
