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2006 DIGILAW 36 (JK)

Janak Raj v. Rachhpal Chand

2006-03-09

J.P.SINGH

body2006
1. This revision petition is directed against order dated 10.12.2005 of learned City Judge, Jammu whereby application of the petitioner, seeking appointment of a local commissioner for ascertaining, as to whether the suit land was in front of house of Dhanna Ram or in the compound of Munshi Ram, has been rejected. 2. Learned Subordinate Judge, has disallowed the application of the petitioner on the ground that identity of the suit property was not in dispute in the suit and the only dispute between the parties was as to whether or not the sale made by defendant no.4 is hit by Doctrine of lis pendens. 3. Learned Judge has further held that purpose of issuance of commission is the elucidation of evidence, which the parties may produce in support of their respective stand in their pleadings. 4. Sh. B.L Kalgotra, learned counsel for the petitioner, submits that the learned trial court has erred in relying on order 26 of the Code of Civil Procedure to refuse appointment of a local commissioner. He refers to order 39 Rule 7 of the code of Civil Procedure, which according to the learned counsel was the provision, which was required to be taken into consideration by the trial Court while dealing with the observation of the Court as to whether the order impugned in the appeal was `case decided referred to Ponnusamy pandaram v. The Salem Vaiyappamalai Jangamar Sangam reported as AIR 1986 Madras 33, to urge that the order of appointment of local commissioner is a `case decided and amendable to the revisional jurisdiction of the Court. 5. Sh. M.M Gupta, learned counsel for the respondents, submits that his clients do not dispute the identity of the suit property and had specifically stated in their objections to the application of the petitioner that the suit land is situated adjacent of the land of Dhanna Ram. 6. Learned counsel for the respondents further submits that present petition has been filed by the petitioner with the intention of avoiding final disposal of his application for injunction in which he has secured interim order which continues to operate against the respondents, whose all efforts to get it vacated are been frustrated by the petitioners on one or the other excuse. 7. I have considered the submissions of learned counsel for the parties and gone through the judgment cited by the learned counsel for the petitioner. 8. 7. I have considered the submissions of learned counsel for the parties and gone through the judgment cited by the learned counsel for the petitioner. 8. The expression `case decided appearing in Section 115 of the Code of Civil Procedure will in my opinion, be a case where the Court adjudicates for the purposes of the suit some or the other right or obligation of the parties in controversy. 9. This expression, though, does not contemplate a restricted interpretation as provided in Smt. Harvinder Kaur and Anr. v. Godha Ram and anr. Reported as AIR 1979 Punjab & Haryana 76, yet would not embrace within its ambit, every decision of the Court not affecting the rights of the parties and controversy necessary for the adjudication of the dispute between them. 10. With this principle in view, one has to consider as to whether or not an order declining appointment of local commissioner during the pendency of an application for issuance of injunction would fall within the expression `case decided u/s 115 of the Code of Civil Procedure. 11. While dealing with the interim application for issuance or otherwise of injunctive directions, neither the controversy between the parties is not decided nor does this decision affect the rights or obligations of the parties. Refusal to accede to the request of a party seeking appointment of local commissioner would not in my opinion amount to `case decided. The revision petition of the petitioner is, thus, held not maintainable. 12. The plea of Sh.Kalgotra that the Courts have power to issue commissions under order 39 Rule 7 of the Code of Criminal Procedure deserves notice only to be rejected because appointment of a local commissioner, and Inspection of the property, are two different concepts. Inspection during the pendency of an application for injunction under Rule 1 and 2 of the C.P.C is not contemplated by Order 39 Rule 7 of the Code of Civil Procedure, can be sought for by way of a regular application and that, too, only if order for Inspection of the property, which is the subject matter of the suit, is necessary for deciding any question in controversy between the parties in the suit. 13. 13. There being no controversy between the parties as to the identity of the property in dispute, there was no occasion for the Court to exercise any such power of inspection and that too in the absence of any application having been moved by the petitioner under Order 39 Rule 7 of the Code of Civil Procedure. 14. Before parting, I, however, would like to record that Sh. M.M Gupta, learned counsel appearing for the defendants, reiterated the stand taken by the defendants in their suit and application before the trial Court that the respondents do not dispute the identity of the subject matter of dispute between the parties. 15. There is, thus, no merit in this petition, which is, accordingly, dismissed. Learned trial court is directed to speed up the trial and ensure disposal of application for injunction not later than two months.