On January 12, 2023, the Punjab and Haryana High Court, while dismissing a revision petition filed against an order for an appointment of a Local Commissioner [under Order XXVI Rule 9 of the Code of Civil Procedure, 1908], observed that no revision was maintainable against an order dismissing an application for an appointment of a Local Commissioner as the order refusing to appoint a Local Commissioner did not decide any issue nor did it adjudicate any rights of the parties for the purpose of the suit.
Brief Facts:
The petitioner/plaintiff filed a suit for the permanent injunction and mandatory injunction on the ground that he was the owner in possession of Plot No.13 vide registered Transfer Deed No.4869 dated 16.07.2014 and had built a house over the said plot since the date of its purchase and covered 84 square yards thereof. He was using the rest of the part of the plot in question for his different household purposes. It was further averred in the plaint that since the purchase of the said plot, the petitioner was in peaceful possession and enjoyed the suit property without any let or hindrance from anybody by exercising all the rights of ownership. It was also averred in the plaint that the petitioner was paying the house tax and bills to the Government authorities. He also stated in the plaint that the respondent wanted to raise construction towards the suit property without leaving any setback as prescribed by the law thereby depriving the petitioner of his legal easement right.
During the pendency of the suit, the petitioner filed an application under Order XXVI Rule 9 CPC for the appointment of a Local Commissioner. The said application was filed on account of the fact that the petitioner wanted to raise construction over the suit property but the respondents were interfering in the peaceful possession of the petitioner and making encroachment over the suit property. The said application was contested by the respondents and the same was dismissed vide the impugned order dated 18.09.2019. Hence, the present revision petition.
Contentions of the Petitioner:
The counsel for the petitioner submitted that the appointment of a local commissioner was necessary to determine the controversy in question.
Observations of the Court:
The Hon’ble court observed that the petitioner approached the court by filing a suit for permanent injunction and mandatory injunction on the ground that he was the owner in possession. Moreover, the suit was still at the initial stage inasmuch as the evidence of the petitioner was yet to commence and at that stage, an application was filed by the petitioner for the appointment of a Local Commissioner on the ground that reports qua the existing state of affairs over the suit property were required.
The court additionally observed that the petitioner was yet to prove his case by leading the evidence and that in fact, the petitioner was waiting for the court to collect the evidence for him, which could not be permitted.
The court while referring to the Judgments in the cases of, Pritam Singh & Anr. vs. Sunder Lal & Ors., and Smt. Raksha Devi Vs. Madan Lal & Ors., further observed that no revision was maintainable against an order dismissing an application for an appointment of a Local Commissioner. Moreover, it was trite that an order refusing to appoint a Local Commissioner did not decide any issue nor did it adjudicate any rights of the parties for the purpose of the suit and hence was not a revisable order.
The Decision of the Court:
The revision petition filed under Article 227 of the Indian Constitution against an order, dismissing an application for an appointment of a local Commissioner, was dismissed.
Case Title: Hawa Singh Vs. Shri Bhagwan and Another
Coram: Hon’ble Justice Alka Sarin
Case No.- CR No.1794 of 2020 (O&M)
Advocate for Petitioner: Mr. Rahul Makkar
Read Judgement;
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(With input from news agency language)
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