Punjab and Haryana High Court: Alka Sarin, J., dismissed the revision petition filed under Article 227 of the Constitution to set aside the order passed by the Additional Civil Judge vide which the application for appointment was dismissed on the ground that the order refusing appointment does not decide any issue nor does it adjudicate rights of the parties.
Facts:
The plaintiff filed a suit for a permanent injunction to restrain the defendant from interfering in his peaceful possession and cultivation of the suit’s land. During the pendency of the suit, the plaintiff filed an application under Order XXVI Rule 9 of the Civil Code, 1908 for the appointment of a Local Commissioner for bringing on record the existing position of the suit’s property.
The defendant- respondent contested that the application was filed just to delay the proceedings. It was also argued that there was no locus standi and cause of action to file the application.
Hereafter, the application was dismissed and the plaintiff- petitioner sought revision of the said order.
Issue:
Is Revision maintainable against an order dismissing an application for the appointment of a Local Commissioner under Order XXVI Rule 9 of the Code, 1908?
Observation and Analysis:
The Court relied on the judgment of Pritam Singh v. Sunder Lal [1990(2) PLR 191] where it was held that refusing to appoint a Commissioner under Order XXVI Rule 9 of the Code, 1908, has nothing to do with the rights of the parties. It is the discretion of the Court to appoint a Commission, then no right of any party can be said to be prejudiced as such.
The Court held that there is no illegality or irregularity in the order passed by the Additional Civil Judge.
The Court further held that no revision will be maintainable against an order dismissing an application for the appointment of a Local Commissioner as it does not decide any issue nor does it adjudicate any rights of the parties for the purpose of the suit.
[Harchand v. Karambir Singh, 2022 SCC OnLine P&H 1777, decided on 18-07-2022]
Advocates who appeared in this case :
Balraj Gujjar, Advocate, for the Petitioner.
