The rejection of an application under Order 26 Rule 9 of CPC is revisable under Section 115 of CPC if it decides a right between the parties.

JUDGMENT :

The petitioner is a plaintiff of Suit No. 351 of 2016, Smt. Shubhra Pande Vs. Smt. Durga Pande and others, which stood instituted by her before the Court of Civil Judge (Senior Division), Dehradun, praying for the grant of decree of mandatory injunction particularly for removal of the boundaries, as well as for grant of decree of perpetual injunction. The same was contested by the defendants respondents by filing written statement, but however, during the pendency of the suit, the defendants have filed an Application under Order 26 Rule 9 of CPC, praying for appointment of a Local Commissioner in order to ascertain the measurement of passage and the boundary walls. The said application as it was preferred on 28.08.2017, which was objected by the petitioner by filing an application paper No. 71C, denying the statements, consequent to which, the learned trial Court vide its order dated 18.07.2023, rejected the application under Order 26 Rule 9 of CPC, inter alia on the ground that the parties cannot utilize the provisions as contained under Order 26 Rule 9 of CPC, to collect the evidence which may affect an adjudication of a trial on merits.

2. The matter was thereafter put to challenge in the Revision, being Civil Revision No. 115 of 2023, Smt. Durga Pande and others Vs. Smt. Subhra Pande, which has been allowed by the Court of 1st Additional Sessions Judge, Dehradun by the judgment impugned i.e. dated 18.07.2023 and had remitted the matter back; to the learned trial Court to re-decide the application under Order 26 Rule 9 of CPC. It is this order which has been put to challenge by the petitioner primarily on the following grounds:-

Firstly, the learned Revisional Court has not assigned any reasons, for reversing the order as it was passed by the learned trial Court, rejecting the application under Order 26 Rule 9 of CPC of the defendants.

3. To deal with this question, if the Revisional Court’s order itself is taken into consideration, it has been rather argued by the learned counsel for the petitioner to the contrary, that the scope of revision itself is very limited and the scope of which cannot be enlarged to venture upon, to decide an issue on its own merit thereby effecting the trial. But here, the question would be quite distinct as to whether at all an application filed under Order 26 Rule 9 of CPC which stood rejected by the learned trial Court whether that order itself would be revisable or not?

4. For the purposes of bringing an order as to be a revisable, the provisions contained under Section 115 of CPC, as amended by Uttaranchal Amendment (Act No. 1 of 2006), is required to be referred to, which is extracted as hereunder:-

115. Revision (1) A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where no appeal lies against the order and where the subordinate court has-

(a) exercised a jurisdiction not vested in it by law;

(b) failed to exercise a jurisdiction so vested; or

(c) acted in exercise of its jurisdiction illegally or with material irregularity.

(2) A revision application under sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court.

(3) the superior court shall not, under this section, vary or reverse any order made except where-

(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding; or

(ii) the order, if allowed to stands, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.

(4) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by