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ALKA SARIN
Sudesh Jain – Appellant
Versus
State of Haryana – Respondent
JUDGMENT :
(Alka Sarin, J.) :
The present revision petition under Article 227 of the Constitution of India has been filed challenging the order dated 04.12.2023 passed by the Additional Civil Judge (Senior Division), Sonepat whereby the application filed by the plaintiff-petitioner for appointment of a Local Commissioner has been dismissed.
2. Brief facts relevant to the present lis are that the plaintiff-petitioner filed a suit for possession and mandatory injunction and for direction to the defendant-respondents to hand over vacant possession of the encroached land of the plaintiff-petitioner alleging therein that the plaintiff-petitioner is owner of the land falling in Khasra Nos.8817/8619/4561 total measuring 5B-12B situated in the revenue estate of Patti Musalmanan, Sonipat in Khewat No.2516, Khata No.3443 and that the defendant-respondents have encroached upon an area of 950 sq. yards (0B-19B) owned by the plaintiff-petitioner. During the pendency of the suit, the plaintiff petitioner filed an application under Order XXVI Rule 9 CPC for appointment of a Local Commissioner for demarcation of the land encroached upon by the defendant-respondents. It was stated in the application
The court established that the refusal to appoint a Local Commissioner does not affect the rights of the parties and is not subject to revision.
The court has discretion under Order 26 Rule 9 CPC to appoint a local commissioner for proper elucidation of the matter in dispute, and the earlier dismissal of such a request does not preclude the c....
An order dismissing an application for appointing a Local Commissioner does not adjudicate rights and is hence not revisable, as established by prior authority.
The demarcation of land by a Local Commissioner must be carried out strictly in accordance with the instructions of the relevant authorities and land record manuals.
An order refusing to appoint a Local Commissioner does not decide any issue or adjudicate any rights of the parties for the purpose of the suit and hence would not be a revisable order.
The conduct of parties seeking additional evidence is crucial; repeated applications dismissed indicate intent to delay proceedings, warranting rejection of new requests.
The main legal point established is that the appointment of a Local Commissioner under Order XXVI Rule 9 CPC can be allowed in a civil suit to assist in elucidating the matter in dispute without caus....
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