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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
MEENAKSHI I. MEHTA, J.
Mohkam Singh – Appellant
Versus
Rakesh Kumar and others – Respondent
CR No.7507 of 2023
Decided on : 05-02-2024
Local Commissioner Appointment - Civil Suit - Order 26 Rule 9 CPC - [Meenakshi Vs. Vennila & anr., Dhondiram Nivrutti Pawar Vs. Laxman Khashaba Pawar, Chinnathambi Vs. Anjalai, Kanniammal Vs. Chellamuthu, Sunil Vs. Omprakash, Surinder Singh Vs. Bimal Kumar, Shamsher Singh Vs. Baljit Singh, Raj Singh Vs. Mukhtiar Singh, Union of India Vs. M/s. Kripal Industries, Ashok Kumar Bansal Vs. Parmod Ashri, Baljit Kaur Vs. Tehal Singh, Parveen Goyal and another Vs. Raghbir Singh] - The court discussed the appointment of a Local Commissioner under Order 26 Rule 9 CPC and cited various cases to support the contention that the Local Commissioner cannot be appointed for ascertaining possession over disputed property. However, the court found that the plaintiffs' application for the appointment of the Local Commissioner was specific to taking photographs of the property in dispute and did not intend to seek a report on possession. The court upheld the trial court's exercise of discretion in appointing the Local Commissioner to help adjudicate the matter in controversy.
Fact of the Case:
The petitioner-defendant No.1 filed a revision-petition under Article 227 of the Constitution of India to challenge the trial court's order allowing the appointment of a Local Commissioner in a civil suit.
Finding of the Court:
The court found that the appointment of the Local Commissioner was specific to taking photographs of the property in dispute and did not intend to seek a report on possession. The court upheld the trial court's exercise of discretion in appointing the Local Commissioner to help adjudicate the matter in controversy.
Issues: The main issue was whether the trial court's order for the appointment of a Local Commissioner was legally sustainable.
Ratio Decidendi: The court held that the appointment of the Local Commissioner was justified as it would help in adjudicating the matter in controversy and would not cause prejudice to the opposite party.
Final Decision: The revision-petition was dismissed as the court found no merit in challenging the trial court's order for the appointment of the Local Commissioner.
JUDGMENT :
MEENAKSHI I. MEHTA, J.
By filing the instant revision-petition under Article 227 of the Constitution of India, the petitioner-defendant No.1 (here-in-after to be referred as ‘defendant No.1) has assailed the order (Annexure P-1) passed by learned Civil Judge (Junior Division), Patiala (for short ‘the trial Court) on 23.11.2023 in Civil Suit No.1991 of 2018 titled as ‘Rakesh Kumar and ors Vs. Mohkam Singh etc’, whereby the application Annexure P-13, as moved by respondents No.1 and 2-plaintiffs (here-in-after to be referred as ‘the plaintiffs) for seeking the appointment of the Local Commissioner, has been allowed.
2. I have heard learned counsel for the petitioner-defendant No.1 in the present revision-petition, at the preliminary stage and have also gone through the file carefully.
3. Learned counsel for defendant No.1 has contended that it is entirely for the plaintiffs to lead cogent and trustworthy evidence on the record so as to substantiate their claim in the above-referred Civil Suit and the Court cannot facilitate the collection of evidence for them (plaintiffs), by way of appointing the Local Commissioner and in these circumstances, it becomes explicit that the impugned order is not legally sustainable and hence, the same deserves to be set-aside. To buttress her contentions, she has placed reliance upon the verdicts rendered in Meenakshi Vs. Vennila & anr. C.R.P. (PD) No.1464 of 2008 and M.P. No.1 of 2008 decided on 06.09.2008 (Madras) Law Finder Doc Id# 151040, Dhondiram Nivrutti Pawar (since deceased), through LRs and others Vs. Laxman Khashaba Pawar and others, Writ Petition No.1196 of 2017 decided on 23.01.2018 (Bombay) Law Finder Doc Id # 976542, Chinnathambi and others Vs. Anjalai C.R.P(PD) No.1721 of 2005 & C.M.P. No.19371 of 2005 decided on 22.09.2006 (Madras) Law Finder Doc Id # 657407, Kanniammal Vs. Chellamuthu, Civil Revision Petition (PD) No.3980 of 2016 decided on 08.03.2022 (Madras) Law Finder Id # 1988881, Sunil Vs. Omprakash and others, Misc. Petition No.565 of 2023 decided on 03.02.2023 (M.P) Law Finder Id # 2156489, Surinder Singh Vs. Bimal Kumar and another, CR No.4450 of 2017 decided on 18.07.2017 (P&H) Law Finder Id # 906649, Shamsher Singh and others Vs. Baljit Singh, CR No.1021 of 2021 decided on 30.04.2021 (P&H) Law Finder Doc Id # 2016598, Raj Singh and others Vs. Mukhtiar Singh, CR No.8612 of 2014 decided on 06.02.2015 (P&H) Law Finder Doc Id # 663559, Union of India Vs. M/s. Kripal Industries, CR No.124 of 1998 decided on 06.03.1998 (Raj) Law Finder Doc Id # 136357, Ashok Kumar Bansal Vs. Parmod Ashri and others, CR No.1651 of 2022 decided on 13.12.2022 (P&H) Law Finder Doc Id# 2086275, Baljit Kaur Vs. Tehal Singh and others, CR No.1603 of 2022 decided on 29.04.2022 (P&H) Law Finder Doc Id # 2019817 and Parveen Goyal and another Vs. Raghbir Singh, CR No.5729 of 2022 decided on 23.01.2023 (P&H).
4. Though it has been observed in the afore-cited cases that the Local Commissioner cannot be appointed for ascertaining the possession over the disputed property and thereby, collecting evidence for any of the parties to the lis but these observations are of no avail to defendant No.1 because in their application Annexure P-13, the plaintiffs have made prayer for the appointment of the Local Commissioner for taking the photographs of the property in dispute and to submit his report regarding the actual and factual existing position thereof and they have also clarified in para No.4 therein that they do not intend to seek his (LC’s) report qua the possession of any particular person/individual over this property and to, thereby, create evidence and it is worth-while to mention here that in para No.3 in the impugned order Annexure P-1, the trial Court has categorically observed that the appointment of Local Commissioner would help it in adjudicating the matter in controversy and no prejudice would be caused to the opposite party as the defendants would have ample opportunity to cross-examine him
The main legal point established in the judgment is the court's interpretation of the appointment of a Local Commissioner under Order 26 Rule 9 CPC and its exercise of discretion in allowing the appo....
An order refusing to appoint a local commissioner does not decide any issues or rights in a suit and is therefore non-revisable.
The trial Court should evaluate the evidence presented by both parties, and an order refusing to appoint a Local Commissioner does not decide any issue or adjudicate any right or obligation of the pa....
The central legal point established in the judgment is the non-maintainability of the revision petition under Article 227 of the Constitution, as reiterated from the law laid down in Pritam Singh's c....
An order refusing to appoint a Local Commissioner does not decide any issue nor adjudicate any rights of the parties for the purpose of the suit, and therefore, is not revisable.
The discretion to appoint a local commissioner rests with the court, and the party must lead evidence to prove ownership and possession over the property.
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