In CR-3233-2022 (O&M)-PUNJ HC- Order refusing to appoint Local Commissioner is not revisable order, holds P&H HC
Justice Alka Sarin [17-08-2022]

Read Order: Ram Kishan v. Surender and Ors.

Monika Rahar

Chandigarh, August 18, 2022: The High Court of Punjab and Haryana has recently held 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.

The brief facts relevant to the present lis are that the plaintiffs filed a suit for declaration, mandatory injunction along with consequential relief of permanent injunction on the ground that they were owners in   possession of the suit land as per jamabandi for the year 2004-05. 

It was further averred that the defendants who had no concern with the suit land, started raising construction over the land possessed by the plaintiffs in their absence  and therefore the plaintiffs sought a decree of possession by directing the defendant-respondents to hand over the vacant possession of the suit land to the plaintiffs and mandatory injunction directing the defendants to remove their illegal construction. 

The Defendants appeared and filed their separate written statement by taking preliminary objections. Thereafter, the first two defendants moved an application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 for appointment of a Local Commissioner, which was allowed. The Local Commissioner submitted his report to which the two defendants filed objections on the ground that no notice was ever issued to them and the  same was illegal.

Now the plaintiff-petitioner filed an application for appointment of a Local Commissioner to visit the spot and to demarcate the suit land through Electronic Total Machine (ETS) and Double Global Positioning Machine (DGPS) and to report about the existing state of affairs at the spot. 

The said application was contested by the defendant-respondents on the ground that the application was not maintainable and was filed only at the fag end of the case and that a Local Commissioner cannot be appointed in  this case to create evidence on behalf of the plaintiff-petitioner. 

Vide the impugned order the said application was dismissed.

The counsel appearing on behalf of the plaintiff-petitioner contended that the appointment of the Local Commissioner would be necessary in order to bring on record the existing position of the suit property.

After hearing the parties, the Bench of Justice Alka Sarin opined that 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. 

Thus, the Court did not find any illegality or irregularity in the order passed by the Court below. The revision petition was accordingly dismissed.