An order refusing to appoint a Commission under Order 26, Rule 9, Code of Civil Procedure, does not affect the rights of the parties and is not revisable under Sec.115 of the Code of Civil Procedure.

, J.

1. This order will also dispose of Civil Revision Petitions Nos.2745, 2746 and 1855 of 1989 and 766 of 1990, as the question involved in common in all these cases.

2. In Civil Revision Petition No.1157 of 1987, the question referred is: Whether a revision under Sec.115 of the Code of Civil Procedure, would be competent against an order declining to issue a Commission for any of the purposes enumerated in Order 26, Rule 9 of the Code of Civil Procedure.

3. Earlier, this very question was referred to a Division Bench of this Code in the case reported as Harvinder Kaur V/s. Godha Ram, I. L. R.1979 (1) P and H 147. There the question referred was answered by the Division Bench in the following terms :-

"in view of the aforesaid discussion, we hold that no revision would lie against an order passed under Order 26, rule 9, and the view taken in M/s Mohinder Kumar Rajinder Parkash; Dalmir Singh alias Dalmira and Mangal Singh and Anr. V/s. Piara Lal (1971) 73 P. L. R.531 cases lays down the correct law. " However before parting with the Judgment the Bench also observed in paragraph 12 of the report in the above said case as follows : "before parting with the Judgment, it may, however, be made clear that it cannot as a general rule be laid down that in no case a "revision would lie against an interlocutory order passed under any other provision of Order 26 and that it would be on the facts of each case that it will have to be found out whether the interlocutory order, against which a revision is sought to be filed, has adjudicated for the purposes of the suit some right or obligation of the parties in controversy or not. "

4 In Civil Revision Petition No.1157 of 1987, when the matter came up before the learned Single Judge, the learned Judge was of the opinion that the view taken in Harvinder Kaurs case (supra) by the Division Bench, required re-consideration by a larger Bench; hence the reference was made for constituting a larger Bench. It is thus that this case has come up before us.

5. The reason given by the learned Single Judge for re-consideration was that this Court earlier in Sadhu Ram Bali Ram V/s. Ghansham Dass Madan Lal, (1975) 77 P. L. R.686 (F. B.) held that a revision against an order refusing to change the onus of an issue would be competent. Though this case was noticed by the earlier Division Bench in Harvinder Kaurs case (supra) Yet the learned Single Judge distinguished it on facts. According to the learned Single Judge if the order refusing to change the burden of proof can be said to result in adjudication upon some rights between the parties, it is difficult to subscribe to the view that an order declining the right of appointment of a Commission would not result in the adjudication upon any light of the parties. It was further observed that so far as the identity of an property was concerned, a party possibly cannot lead any evidence except by getting a commission appointed to demarcate the land at the spot. No amount of oral evidence can be a substitute for the report of the commission.

6. After getting through the Judgments cited in the reference order, we do not find that the earlier Judgment in Harvinder Kaurs case (supra) requires any re consideration. The order refusing to appoint a local commissioner does not decide any issue, nor adjudicates rights of the parties for the purpose of the suit and is, therefore, not revisable. The distinction sought to be trade by the learned Single Judge in view of the Judgment in M/s Sadhu Ram Bali Rams case (supra) was clearly noticed by the Division Bench in Harvinder Kaurs case (supra) and it was observed : - "it may be observed that the facts of M/s Sadhu Ram Bali Rams case were different as in that case the onus of an issue had been wrongly placed and while deciding that question, it was held that such an order would be revisable. " Apart from that, placing the onus of an issue has something to do with the rights of the parties whereas refusing to appoin