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2018 Supreme(P&H) 2495
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
B.S. WALIA, J.
Balwinder Singh and another - Petitioners
Versus
Dilbag Singh and others - Respondents
CR No.8705 of 2017
Decided On : 13-11-2018
For the Petitioners:Mr. Surinder Garg, Advocate.
For the Respondents:Mr. Vinod Khunger, Advocate.
The main legal point established in the judgment is the interpretation and application of Order 26 Rule 9 CPC, which allows the appointment of a Local Commissioner for spot inspection to elucidate any matter in dispute.
Headnote:
Local Commissioner - Appointment for Spot Inspection - Order 26 Rule 9 CPC - [Order 26 Rule 9 CPC] - The court appointed a Local Commissioner to ascertain the factual position at the spot by visiting the spot to elucidate the matter in dispute regarding the existence of water khal and underground water pipes. The appointment of the Local Commissioner was deemed necessary to avoid adducing much oral evidence and for an accurate determination of the dispute.
Fact of the Case:
The petitioners filed a suit for permanent injunction against the respondents for restraining them from making any changes to the suit land. The respondents claimed that a sanctioned 'pakka' water course was already running in the suit land and sought the appointment of a Local Commissioner to note down the physical features of the land.
Finding of the Court:
The court found that a local investigation was requisite to elucidate the matter in dispute regarding the existence of water khal and underground water pipes. It held that the appointment of a Local Commissioner was necessary to avoid adducing much oral evidence and for an accurate determination of the dispute.
Issues: The main issue was whether the appointment of a Local Commissioner for spot inspection was legally sustainable.
Ratio Decidendi: The court relied on Order 26 Rule 9 CPC, which allows the appointment of a Commission to make local investigations when the court deems it requisite or proper for elucidating any matter in dispute. It also cited relevant case law to support the necessity of appointing a Local Commissioner in the present case.
Final Decision: The court dismissed the Revision Petition, upholding the appointment of the Local Commissioner for spot inspection.
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?
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 the suit land and further that previously ‘nakka’ between killa Nos.16 and 17 of Rect. No.113 was there and the respondents/defendants were irrigating their land through water course between killa Nos.16, 17, 24 and 25 of Rect. No.122. It was further contended that the respondents/defendants had initiated proceedings before the Canal Department to take their turn of water at the point between killa Nos.6 and 7 of Rect. No.122 where ‘pakka’ khal already existed and that the petitioners/plaintiffs wanted to dismantle the water course under the garb of injunction and even they pleaded before Canal Department that turn of water and ‘nakka’ may not be given to the respondents/defendants as they had injunction of the Civil Court, therefore, to bring the true picture before the Court, it was necessary that a Local commissioner be appointed to note down the physical features of the suit land in order to prevent the petitioners/plaintiffs from dismantling the water course after the passage of time and for an effective and just decision of the case.
4. Reply was filed by the petitioners/plaintiffs alleging that there was no khal between killa Nos.4/1 and 5/1 of Rect. No.122, therefore, the question of intention of the petitioners/plaintiffs to dismantle the alleged khal did not arise at all and further that now under the garb of appointment of Local Commissioner, respondents/defendants wanted to create evidence in their favour which could not be allowed as the same would cause prejudice to the petitioners/plaintiffs Accordingly, a prayer for dismissal of the application was made. Reliance was placed by the learned counsel for the petitioners/plaintiffs on the decision in Surinder Kaur v. Rawinder Singh, 2013 (3) CCC 279 (P&H) and A. Gopal Reddy v. R. Subramanyam Reddy and another, 2013 (3) CCC 185 (AP).
5. The leaned trial Court while observing that it was settled that a Commission could not be appointed to ascertain who was in actual possession of the spot but a Commission could certainly be appointed to ascertain what was the factual position at the spot. Learned trial Court observed that in the instant case, it had been alleged by the respondents/defendants that a sanctioned ‘pakka’ watercourse was already running in the suit land and further that previously ‘nakka’ between killa Nos.16 and 17 of Rect. No.113 was there and they irrigated their land through water course between Killa Nos.16, 17, 24 and 25 of Rect. No.113 and further that it was going between Killa Nos.4, 5 and 6, 7 of Rect. No.122 whereas on the other side the petitioners/plaintiffs had contended that there was no khal between killa Nos.4/1 and 5/1 of Rect. No.122, therefore, the aforementioned facts could be ascertained only through a spot inspection. In the circumstances, the learned Additi
