An order refusing to appoint a local commissioner under Order 26, Rule 9 of the Civil Procedure Code is not revisable under Section 115 of the CPC.

PREM CHAND JAIN, J.

1. On the reference that has been made by the learned single Judge vide his order dated May 3, 1978, the question of law that requires determination may be formulated thus :-

"Whether revision lies against an order passed under O.26, R.9 of the Civil P.C. refusing to appoint a Local Commissioner ?"

2. The reference has been made as in the opinion of the learned Judge there appeared to be a conflict of opinion on this aspect of the matter. In Dalmir Singh alias Dalmira V/s. Sant Parkash, Civil Revision No. 1459 of 1975, decided on Sept. 21, 1976,* R.S. Narula, C.J. (as he then was), on the basis of the judgement of Pattar J., in Mohinder Kumar Rajinder Parkash V/s. Basheshar Nath, (1976) 78 Pun LR 280, held that no revision lay against such an order. On the contrary, S.C. Mital J., in M/s. Goverdhan Das Gopi Nath V/s. Smt. Amolak Raj, 1975 Cur LJ 744 (Punj), has held that an order refusing to issue a commission is revisable under S.115 of the Civil P.C. *Reported in 1976 Rev LR 654 (Punj and Har)

3. Mr. Sarin, learned counsel for the petitioners, contended that a revision lay against an order refusing to appoint a local Commissioner and that the view taken in M/s. Goverdhan Das Gopi Nath s case was the correct view and deserved to be upheld. Besides relying on the reasoning given in M/s. Goverdhan Dass Gopi Nath s case, the learned counsel relied on the explanation added to Section 115 of the Civil P.C., which is in the following terms :-

"In this Section, the expression any case which has been decided includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."

On the strength of the aforesaid explanation, it was contended by Mr. Sarin that the order declining to appoint a commission was passed in the course of a suit and such an order fell within the expression case decided .

4. After hearing the learned counsel for the parties, we find ourselves unable to agree with the contention of the learned counsel.

5. S.115 consists of two parts, the first prescribes the conditions in which jurisdiction of the High Court arises, i.e. there is a case decided by a Subordinate Court in which no appeal lies to the High Court; the second, sets out the circumstances in which the jurisdiction may be exercised. But the power of the High Court is exercisable in respect of "any case which has been decided". The expression case decided was not defined in the Code, with the result that there was a conflict of judicial decisions on the question whether the expression case decided included interlocutory orders or not. Though this conflict was resolved by the Supreme Court in S.S. Khanna V/s. F.J. Dhillon, AIR 1964 SC 497, yet in order to clear all doubts about the maintainability of a revision against an interlocutory order, the explanation has been added by the Amendment Act in the year 1976. However, in the instant case, the explanation by itself is of no help as it has still to be decided whether in view of the provision of the explanation an order declining to appoint a commission would be revisable or not ? In our view, in the circumstances of this case, the answer has to be in the negative.

6. Before the amendment of S.115 in the year 1976, the power of revision was exercisable subject to the restriction imposed in cls. (a), (b) and (c) of Sub-Sec. (1). As earlier observed, the words case decided had not been defined and for that reason, a conflict of judicial decisions in respect of interpretation of these words had crept in. The intention of adding the explanation was only to define the words case decided , i.e., that a revision would lie against an order passed during the course of a suit or other proceeding. But the explanation cannot be given this meaning that every order made in the course of a suit or other proceeding would be revisable. Even, Mr. Sarin, learned counsel, during the course of arguments, did not go to that extent that every order passed in the course of