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2018 Supreme(P&H) 2495

B.S.WALIA
Balwinder Singh – Appellant
Versus
Dilbag Singh – Respondent


Advocates Appeared:
For the Petitioners:Mr. Surinder Garg, Advocate.
For the Respondents:Mr. Vinod Khunger, Advocate.

Judgement Key Points

Key Points: - The judgment holds that Order 26 Rule 9 CPC permits appointment of a Local Commissioner for local investigations when the court deems it requisite to elucidate any matter in dispute. (!) (!) - The court appointed a Local Commissioner to ascertain the factual position at the spot to determine the existence of water khal and underground water pipes, to avoid excessive oral evidence and for accurate determination. (!) (!) - The revision petition under Article 227 was dismissed, upholding the order appointing the Local Commissioner. (!) - The Local Commissioner’s role is to ascertain factual position at the spot, not to determine possession, and to elucidate disputed issues. (!) (!) - The case references that an Advocate Commissioner can be appointed to elucidate any matter in dispute and that such orders are not revisable in certain contexts, though in this case the challenge was to an order appointing, which was rejected. (!) (!)

What is the legality of appointing a Local Commissioner under Order 26 Rule 9 CPC for spot inspection to elucidate a matter in dispute?

What are the circumstances under which a Local Commissioner can be appointed to ascertain the factual position at the spot in a suit for injunction regarding khal and underground water pipes?

What is the scope of revisibility of orders appointing a Local Commissioner in the context of Article 227 challenges?


JUDGMENT :

B.S. WALIA, J.

1. Challenge in the revision petition under Article 227 of the Constitution of India is to order dated 21.11.2017 passed by the learned Additional Civil Judge (Sr. Div.), Gidderbaha allowing the application filed by respondents/defendants for appointment of Local Commissioner to note down the physical features of the suit land.

2. Brief facts of the case leading to the filing of the instant revision petition are that the petitioners/plaintiffs filed a suit for permanent injunction for restraining the respondents/defendants once for all from carving out any khal, laying any underground water pipe and also from making any culvert as also from dispossessing the petitioners/plaintiffs from land measuring 1 kanal 7 marlas comprised in Khewat No.315, Khatauni No.618, Rectangle No.122, Kills No.3/1 (0-9), 4/1 (0-9) and 5/1 (0-9) as per Jamabandi for the year 2012-13 situated within the revenue limits of village Sahib Chand, Tehsil Gidderbaha, illegally, forcibly and without any right.

3. The respondents/defendants filed a written statement claiming that a false suit had been filed by the petitioners/plaintiffs as sanctioned ‘pakka’ water course was already running in















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