The main legal point established in the judgment is that no revision lies against the trial court's refusal to appoint a local commissioner under Order 26 Rule 9 of the Code of Civil Procedure.

RAM CHAND GUPTA, J. - The present revision petition has been filed under Article 227 of the Constitution of India against order dated 9.12.2010, passed by learned Civil Judge, Junior Division, Gurgaon, vide which application filed by petitioner for appointment of local commissioner was dismissed.

2. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.

3. Facts relevant for the decision of present revision petition are that application for appointment of satellite surveyor as Local Commissioner was filed by petitioner-plaintiff, when the case was at the final stage, after both the parties led their evidence. The prayer was declined by learned trial Court by observing that earlier as well an application for the said purpose was filed by petitioner-plaintiff during pendency of civil miscellaneous appeal before learned Additional District Judge and, however, the said prayer was not accepted. It has also been contended that earlier demarcation done by Umesh Kumar -DW3 was not properly done.

4. It has been contended by learned counsel for the petitioner that it has been wrongly observed by learned trial Court that earlier application for appointment of Local Commissioner was declined by learned Additional District Judge in civil miscellaneous application. Rather, the plea has been taken that the same was not accepted on the ground that the application was not maintainable in civil miscellaneous appeal.

5. On the other hand, it has been contended by learned counsel for the respondents that revision petition against order passed by learned trial Court refusing to appoint Local Commissioner is not maintainable. It is also contended that on merits as well, the property was already demarcated and report of Local Commissioner is already on the record and hence, it is contended that no second Local Commissioner can be appointed.

6. Even if it is taken that earlier request of petitioner for appointment of Local Commissioner made before learned Additional District Judge during pendency of civil miscellaneous appeal was not decided on merit, learned trial Court has also observed that demarcation was already done in this case and demarcation report is already on the record and hence, the Court in its discretion did not feel it necessary to appoint another Local Commissioner when the case was at the stage of final arguments. It has been rightly observed by learned trial Court that petitioner-plaintiff has to stand on its own legs and has to prove his case.

7. Moreover law is well settled that no revision lies against the order passed by learned trial Court refusing to appoint Local Commissioner in its discretion. Hence, discretion exercised by learned trial Court cannot be interfered by this Court in its revisional jurisdiction, either under Section 115 of the Code of Civil Procedure (hereinafter to be referred as `the Code') or under Article 227 of the Constitution of India.

8. In Pritam Singh and another v. Sunder Lal and others, 1990 (2) PLR 191: 1990 PLJ 418: 1991(1) RRR 356: 1990(2) LJR 244, a Division Bench of this Court by relying upon the decision of this Court rendered in Harvinder Kaur v. Godha Ram, ILR 1979(1) Punjab and Haryana 147 has observed that no revision would lie against an order passed under Order 26 Rule 9 of the Code.

9. This Court in subsequent judgment rendered in Sumer Chand Jain v. Vishnu Bhagwan Mangla, 2006(2) RCR (Civil) 445: 2006(2) PLR 844: 2006(1) PLJ 59 by placing reliance upon Harvinder Kaur's case (supra) and Pritam Singh's case (supra) observed as under:-

“In two Division Bench decisions of this Court in Smt. Harvinder Kaur and another v. Godha Ram and another, AIR 1979 Punjab and Haryana 76 and Pritam Singh v. Sunder Lal, 1991 (1) RRR 356 :(1990-2) 98 PLR 191, it has been held that the order refusing to appoint the Local Commissioner under Order 26 Rule 9 C.P.C. is not revisable under Section 115