In CR 5474/2016(O&M)-PUNJ HC- Relief is to be given only when rights of parties have been adjudicated upon or any issue has been decided by order under revision: P&H HC 
Justice Nidhi Gupta [14-12-2022]

Read Order: Sucha Singh v. Amarnath and Others

Monika Rahar

Chandigarh, December 15, 2022: While dealing with a revision petition seeking the setting aside of the order via which the application filed by the plaintiff for the appointment of a Local Commissioner, was dismissed, the High Court of Punjab and Haryana has held that there is no doubt about the legal mandate that relief is to be given only when, by the order under revision, any issue has been decided or rights of the parties have been adjudicated upon.

Further, the Bench of Justice Nidhi Gupta held,

“However, as cautioned therein, such discretion has to be exercised in the facts of each case, on determination whether the interlocutory order against which revision is sought, has adjudicated for the purposes of the suit some right or obligation of the parties in controversy”. 

The brief facts of the case are that the petitioner filed a suit against the defendants/respondents seeking a mandatory injunction directing the third defendant to restore the passage to its original position. The passage was allegedly reduced in width due to the encroachment by the defendants/respondents. The suit also sought possession against the first two defendants by removal of four walls constructed by them and for permanent injunction restraining them from creating any obstruction in their possession. 

On the basis of the pleadings of the parties, issues were framed. Parties were directed to lead evidence and in the meantime, partition was conducted between the parties by A.C. 1st Grade, Garshankar, and the passage was carved out and as per petitioner, it was provided to one and all. It was also the petitioner’s case that since the suit was with regard to encroachment upon the passage, therefore, he filed an application before the trial Court to ascertain the actual and factual position on the ground.

Via the impugned order, the trial court dismissed the plaintiff’s application seeking the appointment of the Local commissioner on the ground, ‘it is matter in dispute that which party has blocked the passage in dispute and this fact is to be established by way of evidence to be led by the parties. It is settled law that the court is not to collect evidence on behalf of any party. It is the parties who have to prove their case by leading evidence. At this stage no ground is made out to appoint a Local Commissioner in this case. As such, the present application deserves no merit and the same stands dismissed.’ 

Hence the present revision petition was filed. 

After hearing the parties, the Court observed that diametrically conflicting claims were made by the parties against each other for being the encroacher. Further, from a perusal of the record, the Court observed that when viewed as a whole, the record revealed that it was not a case of encroachment simpliciter. 

The Bench also noted that the petitioner claimed the relief of possession against the first two defendants- who, in turn, were claiming ownership and possession over the suit land on basis of sale deeds and demarcation executed by the petitioner himself. Admittedly, the Bench also observed that partition was already conducted by the A.C. 1st Grade, Garshankar and as such, given the nature of the dispute, these were matters/issues to be decided/resolved on the basis of evidence to be led by the parties.

Additionally, while reiterating that an order of the trial court refusing to appoint the Local Commissioner is not revisable, the Bench opined that there is no doubt about the legal mandate that relief is to be given only when, by the order under revision any issue has been decided, or rights of the parties have been adjudicated upon. 

“However, as cautioned therein, such discretion has to be exercised in the facts of each case, on determination whether the interlocutory order against which revision is sought, has adjudicated for the purposes of the suit some right or obligation of the parties in controversy. This is not so in the present case. Thus, no interference by this Court is called for at this stage”, the Court held. 

It was thus reiterated by the Court that the report of a Local Commissioner cannot be substituted for the evidence that was to be presented by the parties in support of their contentions, especially in view of the fact that the petitioner’s case was that the issue in the present case was whether the passage was encroached upon and thus, the appointment of the Local Commissioner for demarcation was needed, whereas as per the respondents, the issue was that the passage was not a public passage and was already sold to them by the petitioner. 

As such, the submission on behalf of the petitioner to the effect that a report, in this case, will not amount to gathering evidence and will only help to resolve the issue, was found by the Court to be misplaced. 

Accordingly, the revision petition was dismissed.