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No Revision Available Against Order Refusing Appointment Of Local Commissioner As Per Order XXVI Rule 9 CPC It Does Not Affect Rights Of Parties: Punjab And Haryana HC

Shvena Neendoor ,
  11 August 2022       Share Bookmark

Court :
High Court of Punjab and Haryana at Chandigarh
Brief :

Citation :
CR No.2752 of 2022

Case title:
Harchand Vs. Karambir Singh and Another

Date of Order:
18th July 2022

Bench:
Justice Alka Sarin

Parties:
Petitioner- Harchand
Respondent- Karambir Singh and Another

SUBJECT

In dealing with a revision petition filed under Article 227 of the Constitution for setting aside an order issued by the Additional Civil Judge rejecting the petitioner's application for appointment of a Local Commissioner, the Punjab and Haryana High Court held that an order refusing the appointment of a Local Commissioner does not decide any issue or adjudicate the rights of the parties and thus would not be a revisable order.

The petitioner sought a permanent injunction to prevent the respondents from interfering with his peaceful possession and cultivation of the suit land. During the pendency of the litigation, the petitioner submitted an application under Order of the Code for the appointment of a Local Commissioner to bring the suit property's current status on record.

IMPORTANT PROVISIONS

Article 227 of the Constitution of India-The High Courts have superintendence over all Courts and Tribunals across the territory, according to Article 227 of the Indian Constitution. Superintendence is both administrative and judicial in character.

Order XXVI Rule 9 of theCode of Civil Procedure, 1908- The order states that in any litigation in which the Court deems a local inquiry necessary for illuminating any topic in dispute or determining the market value of any property, the Court may grant a commission to such person as it sees right, instructing him to perform such investigation and report thereon to the Court.

Section 151 of the Code of Civil Procedure, 1908- The section provides that nothing in the Code will be construed to impair or otherwise influence the Court's inherent ability to issue such orders as may be required for the objectives of justice or to prevent abuse of the Court's process.

OVERVIEW

  • The petitioner instituted a suit for a permanent injunction to prevent the respondent from interfering with his peaceful possession and cultivation of land, as well as to prevent the respondent from interfering with the petitioner's use and enjoyment of the suit property, and to prevent the respondent from altering the composition of the suit property in any way, based on oral and documentary evidence.
  • During the pendency of the claim, the plaintiff submitted an application for the appointment of a Local Commissioner under Order XXVI Rule 9 of the Civil Code of 1908 to record the current situation of the suit's property.
  • The respondents challenged the application, claiming, among other things, that the petitioner submitted the application only to postpone the proceedings and that the petitioner lacked locus standi and cause of action to file the application.
  • It was further argued that the application was not covered by Order XXVI Rules 9 and 10 read with Section 151 CPC and that the Local Commissioner cannot be instructed to gather evidence for any of the parties. Even the petitioner's possession of the suit property was refused.
  • The Trial Court denied the application in the impugned ruling of September 29, 2021. The counsel for the petitioner argued that the appointment of the Local Commissioner was necessary in order to document the current situation of the suit property.
  • Following that, the application was dismissed, and the plaintiff-petitioner requested that the order be revised.

ISSUES RAISED

Whether Revision is maintainable against a decision rejecting an application for the appointment of a Local Commissioner under Code Order XXVI Rule 9?

JUDGEMENT ANALYSIS

  • The Court relied on the decision of Pritam Singh Vs. Sunder Lal [1990(2) PLR 191] in which it was determined that declining to appoint a Commissioner under Order XXVI Rule 9 of the Code of 1908 has nothing to do with the parties' rights. If the Court has the power to appoint a Commission, no party's right may be argued to be affected.
  • This Court took a similar stance in another matter of Raksha Devi Vs. Madan Lal &Ors. [2017(3) PLR 249], ruling categorically that no revision may be filed against a judgement rejecting an application for the appointment of a Local Commissioner.
  • It was opined that it is common knowledge that an order refusing to appoint a Local Commissioner does not resolve any issues or adjudicate any rights of the parties for the purposes of the litigation, and hence is not revisable

CONCLUSION

In light of the legislation established by the Court's Division Bench, the court saw no illegality or irregularity in the order issued by the previous court. As a result, the revision petition was denied. Any pending petitions were also dismissed.

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

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