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2017 DIGILAW 1380 (PNJ)

Gurnam Singh v. Dayal Singh

2017-07-11

RAJ MOHAN SINGH

body2017
JUDGMENT Mr. Raj Mohan Singh, J. (Oral): - The present revision petition has been preferred by the petitioner against the order dated 04.01.2016 passed by the Civil Judge (Sr. Divn.) Moga vide which application for appointment of Local Commissioner was dismissed. 2. Learned counsel for the petitioner relied upon Sri Subhas Mandal and anr. v. Sri Monoranjan Samanta and another 2015(4) WBLR 268 ; Shanu Baheti v. Municipal Council, Pali and another 2012(1) DNJ 364 and Sarala Jain and others v. Sangu Gangadhar and others, 2016(3) Andh LD 197 and contended that interference in the revision petition against the order declining the appointment of Local Commissioner falls within the ambit of Article 227 of the Constitution of India for which discretion can be exercised. 3. I have learned counsel for the parties. 4. It is a settled position that no party can be allowed to take recourse to the process of the Court for collecting evidence. The order rejecting prayer for appointment of Local Commissioner is not revisable in view of ratio of law laid down in Harvinder Kaur and another v. Godha Ram and another, 1979 AIR (Punjab) 76; M/s Mohinder Kumar Rajinder Parkash Dalmir Singh alias Dalmira and Mangal Singh and another v. Piara Lal, 1971 PLR 531 and Pritam Singh and another v. Sunder Lal and others 1990 PLJ 418 . 5. The order refusing to appoint Local Commissioner does not decide any issue on merit inasmuch as that no right of the either party is adjudicated by such order for the purpose of the suit and, therefore, such order is held to be not revisable. Refusal to appoint Local Commissioner is nothing to do with the rights of the parties. It is squarely covered under the discretion of the Court and in case such discretion is refused, no right of the party is prejudiced, therefore, revision is incompetent against such order. 6. In Sumer Chand Jain v. Vishnu Bhagwan Mangla 2006(2) RCR (Civil) 445, this Court while interpreting the earlier precedents held that the revision petition was not maintainable under Section 115 CPC, then by mere change in the headnote of the petition, the substance cannot be replaced to wriggle out from the rigors of law. Such an order cannot be interfered with even under Article 227 of the Constitution of India. Such an order cannot be interfered with even under Article 227 of the Constitution of India. The view expressed in Hari Om v. Minish Kumar, 2005(2) PLR 690 was reiterated to hold that by mere change in the headnote of the petition the subject matter cannot be allowed to be wriggled out from the rigor of the law, which is otherwise well settled in view of consistent view of precedents on the subject matter. 7. The aforesaid view was also reiterated in Balbir Kaur and others v. Pushpa Widge and others, 2006(2) RCR (Civil) 318; Rajiv Kumar Batra v. Kashmiri Lal Sika, 2010(6) RCR (Civil) 37 and Rambir Singh v. Gram Panchayat, Narhera and others, 2012(1) PLR 429 . 8. In Sri Subhas Mandal and anr.’s (supra) the facts involved were to the effect that the third party, who was instrumental in raising wall was sought to be impleaded on the basis of report of the Local Commissioner. Supervisory jurisdiction was exercised, when the Subordinate Court had failed to exercise jurisdiction conferred upon it. It is not a case that the trial Court has no power to appoint Local Commissioner in view of facts and circumstances of the case. The issue is that once the trial Court has exercised its jurisdiction to find that the case is not worth consideration for an appointment of a Local Commissioner, then in such eventuality, revision petition under Section 115 CPC and under Article 227 of the Constitution of India is not maintainable. 9. The exercise of jurisdiction under Article 227 of the Constitution of India is dependent upon the error of jurisdiction exercised by the trial Court or failure of jurisdiction so vested in it. It is a case of proper exercise of jurisdiction by the trial Court, based on precedents on the issue. Once the jurisdiction has been exercised against the petitioner, then it does not lie to the mouth of the petitioner that in the light of some precedents of different High Courts, the jurisdiction has not been property exercised. 10. It is also settled proposition that if two views are possible, then the view preferred by the trial Court should prevail. Even otherwise, this Court is of the opinion that there is no error of jurisdiction or patent illegality in the impugned order. The revision petition is accordingly dismissed.