1) Petitioner has invoked writ jurisdiction of this Court for quashing order dated 10.12.2012 passed by Munsiff, Samba in a case titled Dev Raj v. Nagar Mal and another (hereinafter for short as impugned order) by which application filed by the petitioner for appointment of Commissioner under Order 26 Rule 9 Code of Civil Procedure (for short ‘CPC’) for identification of land came to be dismissed, on the grounds taken in the memo of petition.

2) It appears that petitioner has filed a civil suit for declaration to the effect that sale deed dated 28.05.2001 executed by respondent No.1 (Nagar Mal) in favour of respondent No.2 (Mst. Raj Mohani Sharma) pertaining to land measuring 10 Kanals 8 marlas under Khasra No. 95 situated at Rampur, Tehsil Samba, as null and void, inoperative and against the provisions of law. He further sought relief of possession of land measuring 2 kanals 12 marlas under Khasra No.95 situated at Village Rampur, Tehsil Samba.

3) That said suit is pending before the Court of Munsiff, Samba and during the pendency of the suit, petitioner filed application under Order 26 Rule 9 read with Section 151 Code of Civil Procedure (for short, CPC) for appointment of Commissioner on the ground that suit is pertaining to the land under Kh.No.95 measuring 10 kanals 8 marlas situated at Rampur Tehsil Samba and the petitioner has sought relief of possession of the land measuring 2 kanals 12 marlas of his share. Munsiff, Samba dismissed the application on the ground that applicant wants to determine whether defendant No.2 is in possession of land falling under Kh.No.96 or under Kh.No.95 by appointment of Commissioner, this will amount to collection of evidence which is not the object of provision of law and this fact can be cleared or proved by leading evidence during trial. It is this order, which is called in question by the petitioner in the present petition.

4) Precisely, the case of the petitioner is that impugned order has been passed in hot haste; without application of mind and without taking into consideration the grounds taken by the petitioner-plaintiff in application.

5) Petitioner has not questioned the competence-jurisdiction of the trial Court. Petitioner has also not averred in the wit petition that trial Court or appellate court have passed the order without or in excess of jurisdiction.

6) The maintainability of the petition is put under cloud by its very own averments on the ground that Civil Procedure Code has undergone a sea change with the amendment of 2009. The amendment has restricted the powers of the revisional Court. Virtually, petition is in the nature of revision petition and if such a practice is adopted and allowed that will render the aim and object of the amendment infructuous and meaningless. The fact of this Court having vast powers under Article 226 and 227 is undisputed, but care has to be taken when the same is warranted to be exercised, because the powers under such Articles has to be utilized very cautiously, carefully, sparingly and in rarest of the rare cases.

7) Admittedly, during the pendency of the suit, application came to be filed for appointment of Commissioner, which came to be dismissed on the ground that applicant wants to determine whether defendant No.2 is in possession of land falling under Kh.No.96 or under Kh.No.95 by appointment of Commissioner, this will amount to collection of evidence which is not the object of provision of law. Moreover, this fact can be cleared or proved by leading evidence during trial.

8. The Apex Court in case titled Shalini Shyam Shetty v. Rajendra Shankar Patil reported as 2010 AIR SCW 6387 has observed that there is tendency in High Courts to entertain petition under Article 227 of the Constitution against the orders against which revision is barred in terms of amended Act of CPC. It is apt to reproduce Para 80, 81 and 82 of the judgment supra herein:-

“80. We may also observe that in some High Courts there is tendency of entertaining petitions und

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