The main legal point established is that the refusal to appoint a Local Commissioner does not impede a party's right to lead evidence during trial, and revision against such refusal is not maintainable.

JUDGMENT

Raj Mohan Singh, J. - Petitioner has assailed the order dated 24.09.2018 passed by the Addl. Civil Judge (Sr. Divn.) Garhshankar vide which application for appointment of Local Commissioner was dismissed.

2. Brief facts of the case are that the plaintiff filed a suit for permanent injunction for restraining the respondents/defendants from interfering into the lawful and peaceful possession of the plaintiff over the suit property as detailed in the head note of the plaint bearing Khata No.3411/3875, Khasra No.34/12/1/1/3/2.

3. The suit was contested by the defendants by way of filing written statement, wherein the suit property was denied to to be constituted in the aforesaid Khasra No.34/12/1/1/3/2, rather it was claimed that the suit property was situated in Khasra No.34/12/1/1/1 and 12/1/1/2.

4. Thereafter, an application was filed by the plaintiff for appointment of Local Commissioner to verify as to whether the suit property in dispute is a part of the Khasra No.34/12/1/1/3/2 by way of demarcation of the suit property in question.

5. The trial Court vide the impugned order declined the prayer on the ground that process of the Court cannot be utilized to collect evidence by the plaintiff.

6. I have considered the submissions made by learned counsel for the petitioner.

7. Perusal of the impugned order would show that the trial Court while dismissing the application for appointment of Local Commissioner has noticed the conduct of the petitioner in the context of concluding his evidence. After filing of written statement by contesting defendant No.1 on 17.01.2015, replication was filed by the plaintiff on 24.02.2015. Thereafter issues were framed on 01.12.2015. Plaintiff availed 10 effective opportunities including last opportunity. Thereafter, additional opportunity and exceptional opportunity with costs and one more opportunity on statement of learned counsel were also granted. Learned counsel stated that he would conclude his evidence on 26.09.2017. However, on 26.09.2017 plaintiff reluctantly stepped into witness box and tendered his affidavit by way of examination-in-chief, but did not bring remaining witnesses. Thereafter, petitioner availed number of effective opportunities including payment of costs, but none of the plaintiff's witness came forward to face the cross-examination. The conduct of petitioner in the context of pursuing the case at his own leisure and not completing the evidence till date inspite of availing effective opportunities was noticed. The effort of the petitioner for seeking appointment of Local Commissioner was termed as another endeavour to delay the case further.

8. Learned counsel for the petitioner relied upon Ram Prasad Mishra vs. Dinabandhu Patri and another,2012 50 RCR(Civ) 942 (Orissa); Pulipalpula Srinvias and others vs. Gangula Vasanta,2010 33 RCR(Civ) 815 and Leela Ram vs. Omkar , (2018) 191 PunLR 256 to contend that in respect of controversy regarding identification of the land, local investigation should be done at the earliest so that parties may go to trial with full preparedness. Issue of maintainability of revision petition was never the subject matter of aforesaid cases.

9. In Harvinder Kaur and another vs. Godha Ram and another , (1979) PunLJ 562 DB, this Court has held that revision against the order refusing to appoint the Local Commissioner is not maintainable. It was concluded that no revision would lie against the order passed under Order 26 Rule 9 CPC. The view expressed by the High Court in M/s Mohinder Kumar Rajinder Parkash Dalmir Singh alias Dalmira and Mangal Singh and another vs. Piara Lal , (1971) 73 PunLR 531 was upheld. Similar view was taken in Pritam Singh and anr. vs. Sunder Lal and Ors. , (1990) PunLJ 418.

10. No substantial right of the petitioner has been decided by the impugned order. Petitioner would be will within his right to lead substantive evidence during trial. Refusal to appoint Local Commissioner has nothing to do with the rights of the pet