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2000 DIGILAW 158 (HP)

ARARIT LAL v. REV. TC CHACKO, PRIEST

2000-07-05

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.:- This revision petition is directed against the order dated 8.12.1999 passed by the learned Sub Judge, I-Class (I), Palampur whereby an applicaton under Order 26 Rule 9 of the Code of Civil Procedure filed by the plaintiff in Civil suit No. 92/95 for appointment of a Local Commissioner to demarcate the suit land has been dismissed. 2. I have heard the learned counsel for the parties and have also gone through the material placed on the file. 3. Since the maintainability of the present revision petition has been challenged, therefore preliminary question which arises for determination in this petition is as to whether a revisionlies against an order refusing to appoint a Local Commissioner. 4. In Gulaba v. Hart Ram, 1982 Sim L.C. 85 a learned Single Judge of this court held that an order of rejection of an application under Order 26 Rule 9 of the Code of Civil Procedure for appointment of a Local Commissioner definitely adjudicated some rights or obligations of the parties in controversy and as such the said order will be deemed to be within the purivew of the word "case decided" as used in Section 115ofthecodeofCivilProcedure. Therefore, a revision petition will be maintainable against such an order. However, in Diwakar Dutt Shastri v. Ranjit Singh 1997 (I) S.L.J. a learned single Judge of this court held that an order refusing to appoint a Local Commissioner under Order 26 Rule 9 of the Code of Civil Procedure and thereby rejecting an application for such relief cannot be said to be "a case decided" within the meaning of Section 115 of the Code of Civil Procedure and as such a revision cannot be maintained against such order. 5. 5. The above conflict in the decisions regarding maintainability of a revision against an order rejecting an application under Order 26 Rule 9 of the Code of Civil Procedure has been set at rest by a Division Bench judgment of this Court in Yash Paul Sood v. Devinder Parkash (Civil Revision Petition No. 227 of 1998, decided on 24.9.1998) wherein it was held as follows: "Consequently, we are of the view that the order declining to allow an application for appointing a Local commissioner filed under Order 26 Rule 9 read with Section 151 of the code of Civil Procedure cannot be said to be an order, which would have the effect of finally disposing of the suit or other proceedings and if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it has been made. As rightly pointed out by the learned trial judge also the object of appointing a Local commissioner could not be for the purpose of collecting evidence in the suit and that the invariable rule is that an evidence of the witness is to be given only in public Court and tested by cross-examination. The petitioner is not, by the impugned order of rejection precluded from otherwise substantiating his claim by summoning for the production of the relevant records and examining the persons concerned with the preparation of such records and prove his case otherwise in accordance with law. For all the reasons stated above, we are of the view that the decision taken by the learned Single Judge, who decided the. case reported in 1997 (I) S.L J. 242 lays down the correct position of law in holding that an order rejecting an application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure is not revisable under Section 115 of the Code of Civil Procedure and we over-rule the decision rendered in 1982 Sim. L.C. 85 (supra) taking a contra view, as not correctly decided one." 6. L.C. 85 (supra) taking a contra view, as not correctly decided one." 6. In view of the, above decision of the Division Bench, it is now settled that an order refusing to allow an application for appointment of a Local Commissioner under Order 26 Rule 9 of the Code of Civil Procedure cannot be said to be an order amounting to a "case decided", therefore, a revision against such order is not competent and maintainable as the petitioner is thereby not precluded from otherwise substantiating his claim by summoning for the production of the relevant records and examining the person concerned with the preparation of such records and production and prove his case otherwise in accordance with law. Further more, the person aggrieved by such an order may make it a ground for appeal if it becomes necessary to file an appeal against the decree that may be passed in suit. . 7. As a result this revision petition is not maintainable and is accordingly dismissed. CMP No. 74 of 2000 In view of the above orders, this application has become in fructuous and is dismissed. The interim stay granted vides order dated 31.3.2000 stands vacated. Application dismissed