The decision to appoint a Local Commissioner under Rule 9 of Order 26 is not revisable under Section 115 of the Code of Civil Procedure.

M.R. Verma, J.—The petitioners/defendants (hereafter referred to as the defendants) have preferred this revision petition under Section 115 of the Code of Civil Procedure (hereafter referred to as the Code) against the order dated 21.2.2002 passed by the learned District Judge, Kullu in Civil Appeal No. 26 of 2001 titled Pawan Kumar Sood and another v. Inder Krishan Mehta, whereby he has appointed SDO (PWD), Manali as a Local Commissioner to visit the spot i.e. Plot Nos. 16 and 17 of Urban Estate, Manali and report qua boundary wall of Plot No. 17 regarding material used for construction of the wall, its depth, height and age and support his findings with reasons.

2. Brief facts leading to the presentation of this petition are that respondent/plaintiff (hereafter referred to as the plaintiff) constructed a residential house in Plot No. 17 in Model Town, Manali in the year 1984-85. At that time the adjacent plot No, 16 was vacant. As per the Zonal Plan the allottees of two adjacent plots were required to construct a common wall in between their plots after leaving 5 feet open space on each side of the common wall and the cost of construction of such wall was to be shared equally by the owners of the two plots. Plaintiff constructed 4 feet high wall in between Plot Nos. 17 and 16 and also left open passage of 5 feet on his side of the common wall. In December, 1998 when the plaintiff, who is absentee landlord, visited his house at Manali he found that the defendants, who had purchased Plot No. 16, had raised construction over the common boundary wall whereby the natural light and air to the house of the plaintiff had been blocked. He met the defendants and asked them to rectify their wrongful acts but of no avail. He, thus, instituted a suit for perpetual injunction restraining the defendants from raising any construction over the common boundary wall and for mandatory injunction for demolition of the wall raised by the defendants on the common boundary wall above the height of 4 feet.

3. Defendant Rajinder Pal, who was earlier the sole defendant in the suit, in his written statement claimed that he had no concern whatsoever with the disputed construction and Plot No.16. Defendant Pawan Kumar, who was subsequently added as a party defendant, resisted the suit. In his written statement, he raised so many objections and on merits denied the claim as raised in the plaint.

4. During the pendency of the suit, plaintiff moved an application under Order 26 Rule 9 of the Code for appointment of a Local Commissioner. The trial Court, however, dismissed the application. The suit of the plaintiff was finally decreed.

5. Aggrieved by the judgment and decree of the trial Court, defendants preferred an appeal which is presently pending disposal in the Court of the learned District Judge, Kullu. In the said appeal, the learned District Judge after hearing the parties came to the conclusion that with a view to properly appreciate the evidence on record, application, which was moved by the plaintiff in the trial Court for appointment of Local Commissioner, requires to be allowed as such a course would help in coming to the proper conclusion and to appreciate the evidence and accordingly appointed the Local Commissioner by the impugned order.

6. A preliminary objection regarding maintainability of the present revision petition has been raised and the learned Counsel for the parties had been heard on such objection.

7. It was contended by the learned Counsel for the plaintiff that the impugned order has been passed under Rule 9 of Order 26 of the Code, therefore, the present revision petition is not maintainable as the impugned order does not amount to final order disposing of the case.

8. On the other hand, it was contended by the learned Counsel for the defendants that a Single Bench of this Court has referred the question as to whether a revision lies against the order dismissing/allowing an application under Rule 17 and/or 17-A of Order 18 o