A party cannot create evidence by issuing a commission, and interlocutory orders do not constitute a case decided, thus revisions against such orders are not maintainable.

JUDGMENT :

SAURABH LAVANIA, J.

1. Vakalatnama filed by Shri Vijay Kumar Tiwari, Advocate on behalf of the respondent No. 3 is taken on record.

2. Heard learned counsels for the parties.

3. In view of order proposed to be passed, notice to private respondents is dispensed with.

4. The main prayer sought in the present petition are as under:

“Issue an order to set aside the order dated 19.07.2023, passed by opposite party No. 1 and order dated 30.09.2022 and 16.02.2023, passed by opposite party no 2, by this Hon'ble Court, in the interest of justice.”

5. By means of order dated 30.09.2022, the Trial Court after considering the objection (Paper No. 35C-2) preferred by the petitioner confirmed the Amin's Report (Paper No. 23 C) subject to the evidence to be led by the parties during the trial. The relevant portion of the order dated 30.09.2022 reads as under:

6. Vide impugned order dated 16.02.2023, the Trial Court rejected the application (Paper No. 37C) preferred by the plaintiff/petitioner praying therein that the order dated 30.09.2022 be recalled and fresh commission be ordered. The relevant portion of the order dated 16.02.2023, on reproduction, reads as under:

7. It is appropriate to refer that defendants in suit objected the application for recall of order dated 30.09.2022.

8. In the objection (Paper No. 39C), it has been indicated that just to delay the disposal of application for temporary injunction (Paper No. 6C-2), the present application has been preferred with ill-motive and the order dated 30.09.2022 was passed after hearing counsels for the parties, as such the application for recall (Paper No. 37C)is liable to be rejected.

9. Challenging both these order(s) dated 30.09.2022 and 16.02.2023, the revision was filed by the petitioner i.e. Revision No. 13 of 2022, which was rejected by the revisional Court vide order dated 19.07.2023. The relevant portion of order, on reproduction, reads as under:

“7. In the case in hand, by impugned order dated 16.02.2023, the learned Court below has rejected the application of the revisionist/plaintiff Paper No. 37C on the ground that the Amin Commissioner's report has been confirmed subject to the evidence led by parties, which is not final and is readable under whatever evidence will be produced by the parties before the Court. On these grounds, the learned Court below did not find any reasons to recall the previous order and accordingly rejected the application of the plaintiff.

8. It is settled provision of law that a Commission cannot be issued for the purposes of collecting evidence on behalf of either of the party. This view has been clearly expressed by the Hon'ble Allahabad High Court in Javed All vs. Ahmad Urooz , 2013 (11) ADJ 355 and Tushar Kumar Shah vs. District Judge Kanpur Nagar , 2012 (1) ARC 909. Further, in Smt. Sunder Kaur and Another vs. Smt. Ram Kali and Others , 2011 (3) A.L.J. 165 also, the Hon'ble Allahabad High Court relying on his earlier decisions in Randhir Singh Sheoran vs. 6th Addl. District Judge , 1997 (2) JCLR 860, Radhey Shyam vs. A.D.J. Court No. 13, Lucknow and Others , 2010 (2) ADJ 758 and Sonpal vs. 4th Add. District Judge, Aligarh and Others , 1992 (2) ARC 596 has held that the local inspection or commission by the Court is made only in those cases, where on the evidence led by the parties, Court is not able to arrive at a just conclusion, either way or where the Court feels that there is some ambiguity in evidence which can be clarified by making local inspection or Commission. Local inspection or issuance of commissi