IMPORTANT POINT
Local Commissioner – Appointment of – Order refusing to appoint Local Commissioner is not revisable.

Raj Mohan Singh, J.

Petitioner assails order dated 27.09.2016 passed by Civil Judge (Senior Division), SBS Nagar vide which application for appointment of local Commissioner at the instance of the plaintiff-petitioner was declined.

2. The application was filed with a view to seek directions to the local Commissioner to demarcate the suit property in order to ascertain possession of the party. Applicant plaintiff contends that a wrong Sanad Takseem was prepared and the same was not properly drawn. Possession of the property was illegally shown to have been delivered in favour of the defendants. The prayer was opposed by defendant No.1 on the premise that after the partition, Sanad Takseem was prepared. With the preparation of Sanad Takseem, there was a severance of joint status between the parties, therefore, the suit itself was not maintainable in terms of Section 111 and 158 of Punjab Land Revenue Act.

3. It is a settled principle that a Local Commissioner cannot be appointed in favour of any party for the purposes of collection of evidence. The process of the Court cannot be utilized to collect evidence in favour of either of the party to the litigation. Refusing to appoint Local Commissioner would not decide any substantial right between the parties. Since there is no lis in respect of identification of the land, therefore, the appointment of Local Commissioner would definitely tell upon title in favour or against one of the party. The core issue would be whether the order declining to appoint Local Commissioner is revisable order or not.

4. It is a settled principle of law that the order declining to appoint Local Commissioner is not revisable order. In Harvinder Kaur and another v. Godha Ram and another, 1979 AIR (Punjab) 76, the Division Bench of this Court ruled that an order passed during the course of the suit proceedings would be revisable only when it determines or adjudicates some right or obligation of the parties in controversy. A revision would lie against an interlocutory order only, if it determines or adjudicates some right or obligation of the parties in controversy. Even after satisfaction of the aforesaid test, the power of revision would be exercisable by the Court subject to limitations put under sub-Section (1) and the proviso to Section 115 CPC. After deliberating upon the issue, the Division Bench of this Court held no revision would lie against an order passed under Order 26, Rule 9 CPC and the view taken in M/s Mohinder Kumar Rajinder Parkash Dalmir Singh alias Dalmira and Mangal Singh and another v. Piara Lal, 1971 PLR 531 was reiterated.

5. The aforesaid view was again reiterated in another Division Bench judgment of this Court in Pritam Singh and anr. v. Sunder Lal and Ors., 1990 PLJ 418. It was held in the said ruling that order refusing to appoint Local Commissioner does not decide any issue, nor adjudicates rights of parties for purpose of suit and, therefore, not revisable. Refusing to appoint Local Commissioner has nothing to do with the rights of the parties. It is the discretion of the Court and, if such discretion is refused, no right of the parties prejudiced and revision is not competent against such an order.

6. In Sumer Chand Jain v. Vishnu Bhagwan Mangla 2006(2) RCR (Civil) 445, this Court while interpreting the earlier precedents held that the revision petition was not maintainable under Section 115 CPC, then by mere change in the head-note of the petition, the substance cannot be replaced to wriggle out from the rigors of law. Such an order cannot be interfered with even under Article 227 of the Constitution of India. The proposition held in Hari Om v. Minish Kumar, 2005(2) PLR 690 was reiterated to hold that by mere change in the head-note of the petition the subject matter cannot be allowed to be wriggled out from the rigor of the law, which is otherwise well settled in view of consistent view of the Court.

7. In Balbir Kaur and others v. Pushpa Widge and others, 2006(2) RCR (