ORDER REFUSING TO APPOINT A LOCAL COMMISSIONER DOES NOT DECIDE ANY ISSUE NOR DOES IT ADJUDICATE ANY RIGHTS OF THE PARTIES :PUNJAB AND HARYANA HIGH COURT
This particular decision is upheld by the Punjab and Haryana High Court through the division bench of Justice Alka Sarin in the case of Harchand v Karambir Singh and Another (CR No.2752 of 2022 )
FACTS
plaintiff-petitioner filed a suit for permanent injunction for restraining the defendant-respondents from interfering in his peaceful possession and cultivation over Khasra/Killa No.78//25 min south (3-10) comprised in Khewat No.133 Khatauni No.197 situated in the revenue estate of village Bhurtana, Tehsil Tosham, District Bhiwani as per jamabandi for the year 2016-17 and further for restraining the defendant-respondents from causing interference in the use and enjoyment of the suit property by the plaintiff-petitioner and further that the defendant-respondents be restrained from changing the nature of the suit property in any manner, on the basis of oral as well as documentary evidence Thereafter, during the pendency of the suit, the plaintiff-petitioner filed an application under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for appointment of a Local Commissioner for bringing on record the existing position of the suit property.
JUDGEMENT
The Punjab and Haryana High Court while dealing with a revision petition for setting aside order passed by the Additional Civil Judge dismissing plaintiff’s application for appointment of a Local Commissioner, held that order refusing appointment of Local Commissioner does not decide any issue nor does it adjudicate rights of the parties and hence would not be a revisable order. The Petitioner-plaintiff had filed a suit for permanent injunction for restraining the defendant-respondents from interfering in his peaceful possession and cultivation over suit land. During the pendency of the suit, the plaintiff-petitioner filed an application under Order XXVI Rule 9 of the Code for appointment of a Local Commissioner for bringing on record the existing position of the suit property. The said application was contested by the defendant-respondents inter-alia pleading that the plaintiff-petitioner had filed the application just to delay the proceedings and that the plaintiff-petitioner has no locus standi and cause of action to file the application. The application was dismissed and the plaintiff–petitioner sought revision of the said order herein. The High Court relied on the judgement of Pritam Singh Vs. Sunder Lal [1990(2) PLR 191] wherein it was held that 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.
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JUDGEMENT REVIEWED BY NAISARGIKA MISHRA