An order passed under Order 26 Rule 9 C.P.C. is revisable under Section 115 C.P.C. if the revisional court is satisfied that non-interference would occasion a failure of justice.

A.K. Mathur, C.J.

1. All the three writ petitions under Ari 227 of the Constitution of India were filed before the learned single Judge who has referred the same for decision by the Division Bench due to the importance of the matter on the point whether a revision lies before the District Court or not. The District Court by its order dated 22.4.1996 set aside the order passed by the trial Court and directed appointment of Commissioner under Order 26 Rule 9 C.P.C.

2. In order to appreciate the controversy involved in the case, it would be proper to point out at the outset that earlier as per the M.P. Amendment Act, power under Section 115 C.P.C. was given to the District Court. Subsequently, by an amendment, that power has been restored back to the High Court. The present case was decided by the District Court under Section 115 C.P.C. as the District Court had, at the relevant time, jurisdiction to decide the matter in revision petition.

3. Brief facts giving rise to these writ petitions are that there is a land in Patwari Halka No. 8 bearing khasra No. 1150/2 area O.20 acre and Khasra No. 1150/1 area 0.20 acre in village Sakti, District Bilaspur. (sic)ne land is alleged to be belonging to Subhash Chand and Kapurchand. They filed three suits against defendants Munnalal Pawar, Nirmal Prasad Yadav and Bahoran and sought mandatory injunction for demolition of construction raised by the defendants over the land and for possession thereof on the allegation that the defendants have trespassed over their land and raised construction. In those proceedings, an application was filed by the plaintiffs for appointment of Commissioner. The Trial Court dismissed the application for appointment of Commissioner. Aggneved by the order of the trial Court, a revision was filed before the District Court under Section 115 C.P.C. which came to be disposed of by the Additional District Judge, Sakti, District Bilaspur and he reversed the order passed by the trial Court and allowed the application in all the three suits directing that Revenue Inspector may inspect the spot and submit his report, as there was a conflict in two reports which were submitted before the trial Court in respect of demarcation of the area.

4. Aggrieved by the order of the learned Additional District Judge, Sakti, District Bilaspur dated 22.4.1996, three writ petitions were filed by Nirmal Prasad Yadav before this Court. During the course of arguments, before the learned single Judge, question arose whether the District Judge has jurisdiction under Section 115 C.P.C. to interfere with the order passed by the trial Court rejecting the application for appointment of Commissioner under Order 26 Rule 9 C.P.C. Therefore, the learned Single Judge has referred this question whether the revision is maintainable before the District Court or not. The learned single Judge has referred to the decision of Punjab and Haryana High Court in the case of Smt. Harvinder Kaur and another Vs. Godha Ram and another (1) wherein it has been held that order refusing to appoint Local Commissioner is not a case decided and is not revisable. Learned Single Judge has also referred to a decision of Madras High Court in the case of Ponnusamy Pandaram vs. The Salem Vaiyappamalai Jangawar Sangam (2) in which a contrary view has been taken that such an order falls within the expression 'case decided' and therefore the order is revisable. We have heard learned counsel for parties.

5. It is true that there are two conflicting decisions 'one given by Punjab & Haryana High Court and the other by Madras High Court. In the decision of Madras High Court, decision given by Punjab & Haryana Court was considered. Learned counsel for parties have addressed the arguments on the question of maintainability of revision petition. We have examined the matter. Section 115 C.P.C. reads as under:

115. REVISION

(1) The High Court may call for the record of any case which has been decided by any Court sub-ordinate to such High Court