Punjab-Haryana High Court
Samaj Vikash Paryatan Kendra vs Ajit Kumar And Anr on 9 May, 2024
Author: Alka Sarin
Bench: Alka Sarin
CR-2615-2024 1
120
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR-2615-2024 (O&M)
Date of decision : 09.05.2024
Samaj Vikash Paryatan Kendra ... Petitioner(s)
Versus
Ajit Kumar & Anr. ... Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. A.K. Gupta, Advocate for the petitioner.
ALKA SARIN, J. (ORAL)
1. The present revision petition under Article 227 of the
Constitution of India has been filed challenging the order dated 04.03.2024
(Annexure P-1) passed by the Additional Civil Judge (Senior Division),
Loharu 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 declaration to the effect that he was owner in
possession of the land comprised in Khewat No.48//47 Khatoni No.68
Khasra No.88//5/3/2(2-17) situated within revenue estate of Village
Sohansara, Teshil Loharu, District Bhiwani and for permanent injunction for
restraining the defendant-respondent from interfering in the peaceful
possession of the plaintiff-petitioner. During the pendency of the suit, the
integrity of this order/judgment.
plaintiff-petitioner filed an application under Order XXVI Rule 9 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 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.
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 04.03.2024.
Learned counsel has relied upon the judgment passed by this Court in M/s
Allwin Infrastructure Limited, Panchkula Vs. M/s MAXXUS
Developers & Ors. [2021(1) RCR (Civil) 177] to contend that a revision
petition against the order dismissing the application for appointment of
Local Commissioner would be maintainable.
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
integrity of this order/judgment.
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
is trite that an order refusing to appoint a Local Commissioner does not
integrity of this order/judgment.
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 the learned counsel for the
plaintiff-petitioner would be of no avail to him inasmuch as in the case of
M/s Allwin Infrastructure Limited, Panchkula (supra) the revision
petition was filed challenging the appointment of the Local Commissioner,
which was dismissed on merits finding no illegality or infirmity in the
impugned order.
8. In the present case the plaintiff-petitioner is seeking
appointment of a Local Commissioner for demarcation of the land whereas
the entire case of the plaintiff-petitioner in his plaint is for declaration to the
effect that he is the owner in possession of the land in dispute and for
permanent injunction restraining the defendant-respondent from interfering
in the peaceful possession of the plaintiff-petitioner. 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.
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.
09.05.2024 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this order/judgment.
