Punjab-Haryana High Court
Pehlad And Others vs Munshi Ram And Others on 22 November, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:154623
CR-6804-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(121)
CR-6804-2024
Date of Decision: - 22.11.2024
Pehlad and others
....Petitioners
Versus
Munshi Ram (D) through LRs and others
.....Respondents
CORAM : HON'BLE MR. JUSTICE VIKAS BAHL
Present:- Mr. Vinay Kumar Pandey, Advocate
for the petitioners.
****
VIKAS BAHL, J. (ORAL)
1. Present revision petition has been filed under Article 227 of
the Constitution of India for setting aside the order dated 13.09.2024
passed by the Additional Civil Judge (Junior Division), Nuh in CS
No.793 of 2014, whereby the application of the petitioners for
appointment of Building Expert/Engineer as Local Commissioner to
report about the age of house/construction has been dismissed.
2. Learned counsel for the petitioners has submitted that the
petitioners had move an application under Order 26 Rule 9 CPC for
appointment of Local Commissioner to ascertain the age of the
house/construction raised by the defendants. It is further submitted that
the same would help the Court in finally adjudicating the case and has
thus, submitted that the said application be allowed and the Local
1 of 8
Neutral Citation No:=2024:PHHC:154623
Commissioner be appointed and the impugned order rejecting the said
application be set aside.
3. This Court has heard learned counsel for the petitioners and
has perused the paper-book.
4. A perusal of the impugned order dated 13.09.2024 would
show that the trial Court has taken into consideration the fact that the
plaintiff/respondent had filed a suit for possession alongwith
consequential relief of permanent injunction on the ground that he is
owner of the disputed property and that earlier in the year 2011 his son
Kishan Singh had filed a suit against defendants for granting injunction
but the said suit was dismissed on 17.12.2011 on the ground that son of
the plaintiff namely Kishan Singh was not the real owner of the property
and thereafter, the present petitioners/defendants had taken forcible
possession of the same. It was further observed that on 11.05.2012, the
issues were framed including an issue 'whether the plaintiff is entitled
for possession of the disputed property alongwith injunction?" and
that the material question in the present case is that as to whether the
plaintiff is entitled for possession of the disputed property or not and for
the said purpose, there was no need to appoint a building expert to know
the age of the building and at any rate, it was the duty of the
defendants/petitioners to lead their independent evidence with respect to a
fact, burden of which was upon them and they cannot ask the Court to
collect the evidence in their favour.
5. The above-said order passed by the trial Court deserves to be
2 of 8
Neutral Citation No:=2024:PHHC:154623
upheld. Firstly it would be relevant to mention that the Division Bench of
this Court in the case of Pritam Singh vs. Sunder Lal reported as 1990(2)
PLR 191 had observed that 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. Learned
Single Judge, vide judgment dated 18.07.2022 passed in Civil Revision
No.2752 of 2022 in case titled as "Harchand Vs. Karambir Singh and
another", by placing reliance upon the above-said judgment of Division
Bench and also the judgment of the learned Single Bench in "Raksha
Devi Vs. Madan Lal and others", reported as [2017 (3) PLR 249], had
observed that no revision would be maintainable against an order
dismissing an application for appointment of a Local Commissioner. The
relevant portion of the said judgment in Harchand's case (supra) is
reproduced as under: -
"4. Learned counsel appearing on behalf of the
plaintiff-petitioner has contended that the appointment of the
Local Commissioner would be necessary in order to bring on
record the existing position of the suit property.
5. Heard.
6. In the present case the challenge 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 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
3 of 8
Neutral Citation No:=2024:PHHC:154623
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."
7. 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.
8. In view of the law laid down by the Division Bench
of this Court, I do not find any illegality or irregularity in the
order passed by the Court below.
9. The revision petition is accordingly dismissed.
Pending applications, if any, also stand disposed off."
4 of 8
Neutral Citation No:=2024:PHHC:154623
6. The provision of Order 26 Rule 9 CPC is reproduced
hereinbelow:-
"9. Commissions to make local investigations.--In any
suit in which the Court deems a local investigation to be
requisite or proper for the purpose of elucidating any matter
in dispute, or of ascertaining the market-value of any
property, or the amount of any mesne profits or damages or
annual net profits, the Court may issue a commission to such
person as it thinks fit directing him to make such
investigation and to report thereon to the Court;
Provided that, where the State Government has made
rules as to the persons to whom such commission shall be
issued, the Court shall be bound by such rules."
A perusal of the said provision would show that the same
provides that it is within the power of the Court to issue a Commission to
such person as it thinks fit, to make an investigation on some aspect. A
further reading of the said provision would show that there is no right
vested in favour of a party to get the said commission issued and rather
the same is an enabling provision that enables the Court to appoint a
Commissioner if it is of the opinion that the same is required in a case.
7. In the present case, the trial Court has observed that the
appointment of a Local Commissioner is not required as the same would
amount to collecting evidence on behalf of the defendants-petitioners and
it is the duty of the respective parties to lead their evidence in order to
prove their pleas. On the said aspect, it would be relevant to refer to the
judgment of the Coordinate Bench of this Court passed in Civil Revision
no.4651 of 2011 titled as "Smt.Ulfat vs. Hardeep Singh" decided on
5 of 8
Neutral Citation No:=2024:PHHC:154623
03.08.2011 in which it was specifically observed that the Court is not to
collect evidence for the parties. It was further observed that no revision
lies against the order passed by the trial Court refusing to appoint a Local
Commissioner, as discretion exercised by the trial Court cannot be
interfered with in its revisional jurisdiction. It was also observed that the
said principle would also apply to a revision petition filed under Article
227 of the Constitution of India and several judgments on the said aspect
were taken into consideration. The relevant part of the said judgment is
reproduced hereinbelow:-
"....Court is not to collect evidence for the parties and
hence, Local Commissioner cannot be appointed to report
as to who is in possession of the property in dispute.
Moreover law is well settled that no revision lies
against the order passed by learned trial Court refusing to
appoint Local Commissioner in its discretion. Hence,
discretion exercised by learned trial Court cannot be
interfered by this Court in its revisional jurisdiction, either
under Section 115 of the Code of Civil Procedure
(hereinafter to be referred as 'the Code') or under Article
227 of the Constitution of India.
In Pritam Singh and another v. Sunder Lal and others,
1990 (2) PLR 191: 1990 PLJ 418: 1991(1) RRR 356: 1990(2)
LJR 244, a Division Bench of this Court by relying upon the
decision of this Court rendered in Harvinder Kaur v. Godha
Ram, ILR 1979(1) Punjab and Haryana 147 has observed
that no revision would lie against an order passed under
Order 26 Rule 9 of the Code.
This Court in subsequent judgment rendered in Sumer
Chand Jain v. Vishnu Bhagwan Mangla, 2006(2) RCR (Civil)
6 of 8
Neutral Citation No:=2024:PHHC:154623
445: 2006(2) PLR 844: 2006(1) PLJ 59 by placing reliance
upon Harvinder Kaur's case (supra) and Pritam Singh's case
(supra) observed as under:-
"In two Division Bench decisions of this Court in
Smt.Harvinder Kaur and another v. Godha Ram and
another, AIR 1979 Punjab and Haryana 76 and Pritam
Singh v. Sunder Lal, 1991 (1) RRR 356 :(1990-2) 98 PLR
191, it has been held that the order refusing to appoint
the Local Commissioner under Order 26 Rule 9 C.P.C. Is
not revisable under Section 115 C.P.C., therefore, such
an order should not be interfered now under Article 227
of the Constitution of India. In this regard, in Hari Om v.
Minish Kumar, (2005- 2) PLR 690, it was observed by
this Court that if a revision petition under Section 115
C.P.C. against the impugned order is not maintainable,
then by mere change in the head note of the petition, the
substance cannot be replaced to wriggle out from the
rigors of law which is well settled that no revision
petition under Section 115 C.P.C. is maintainable."
On the same point are the decisions of this Court in
subsequent judgments rendered in Bant Singh alias
Balwant Singh and another v. Raghubir Singh and others,
2008(4) RCR (Civil) 260: 2008(2) RCR (Rent) 297 and Rajiv
Kumar Batra v. Kashmiri Lal Sika, 2010(6) RCR (Civil) 37
in which also it was held that revision petition either under
Article 227 of the Constitution of India or under Section 115
of the Code is not maintainable against an order dismissing
application for appointment of Local Commissioner.
In view of the aforementioned facts, it cannot be said
that any illegality or material irregularity has been
committed by learned trial Court in passing the impugned
order or that a grave injustice or gross failure of justice has
7 of 8
Neutral Citation No:=2024:PHHC:154623
occasioned thereby, warranting interference by this Court.
Moreover, law has been well settled by Hon'ble Apex Court in
Surya Dev Rai v. Ram Chander Rai and others, 2003 (6) SCC
675: AIR 2003 SC 3044: 2004(1) RCR (Civil) 147, that
supervisory jurisdiction is not available to be exercised for
indulging in re-appreciation or evaluation of evidence or
correcting the errors for drawing inference like a Court of
appeal. It has been observed as under:-
"Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of
fact or of law unless the following requirements are
satisfied: (i) the error is manifest and apparent on the
face of the proceedings such as when it is based on clear
ignorance or utter disregard of the provisions of law,
and (ii) a grave injustice or gross failure of justice has
occasioned thereby."
Hence, the present revision petition is, hereby,
dismissed being devoid of any merit."
8. This Court finds that the impugned order has been correctly
passed and does not call for any interference and deserves to be upheld
and the revision petition filed by the petitioners being meritless deserves
to be dismissed and is accordingly dismissed.
( VIKAS BAHL )
November 22, 2024 JUDGE
naresh.k
Whether reasoned/speaking? Yes
Whether reportable? Yes
8 of 8
