CR No.7323 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.7323 of 2011 Date of decision: 12.12.2011 Zila Parishad, Gurgaon ..Petitioner`` Versus Bholu Ram and others ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Vipul Aggarwal, Advocate for the petitioner. Ajay Kumar Mittal,J. 1. Defendant No.2-petitioner is aggrieved by the order of the trial court dated 12.11.2011 whereby an application filed by it for appointment of Local Commissioner has been declined. 2. Brief facts as narrated in the petition may be noticed. Respondent No.1 claimed possession over the suit property bearing No.MC No.15/.4 situated in Indrapuri, Gurgaon on the plea that the said property came from his father late Shri Datta Ram by virtue of declaratory decree passed in a civil suit in the year 1993 and his brother Sewa Ram (now deceased) was a licensee in the suit property. Infact, the suit property is 1 CR No.7323 of 2011 owned by the petitioner. Initially Zila Parishad was not impleaded as a party but was later on impleaded as defendant No.2 vide order dated 7.11.2009 passed by the trial court. Subsequently, it filed an application dated 24.10.2011 for appointment of a Local Commissioner. The application was contested by respondent No.1 by filing reply. The trial court dismissed the said application vide order dated 12.11.2011 impugned herein. Hence this revision petition. 3. Learned counsel for the petitioners submitted that it was essential that the demarcation of the property was carried out and accordingly an application for appointment of Local Commissioner was filed in order to do justice between the parties. The declining of the said application has resulted in miscarriage of justice. 4. After giving thoughtful consideration to the submissions of learned counsel for the petitioner, I do not find any merit in the revision petition. 5. Order 26 Rule 9 of the Code of Civil Procedure deals with appointment of Local Commissioner. It reads thus:- “Commissions to make local investigations – In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 2 CR No.7323 of 2011 6. The aforesaid provision empowers the Court to appoint a Commissioner where it considers a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or for ascertaining any of those purposes enumerated therein. The Court while exercising discretion has to act judicially and cannot exercise arbitrary power. The object for appointment is to obtain evidence from the spot itself which helps the Court to properly and effectively evaluate the evidence on record. The report of the Local Commissioner is a piece of evidence and its weight has to be seen by the Court alongwith the other evidence on record. 7. The trial court concluded that the plaintiff-respondent was claiming possession of residential house bearing MC No.15/4 situated in Indira Puri, Gurgaon and not property falling in Khasra No.774/72 and 775/72 for which demarcation was required by the defendant No.2 – petitioner. Further, there was no dispute relating to identification of the property. The trial court while dismissing the application observed as under:- “Averment of applicant for appointment of local commission in order to ascertain whether the suit property falls within Khasra No.774/72 and 775/72 is not tenable. Admittedly defendant No.2 did not file any counter claim against plaintiff. Moreover present suit for mandatory injunction is filed by plaintiff against defendant No.1. Perusal of case file reflect that in this case another application for appointment of local commission filed by defendant No.1 has already been decided on 4.5.2011. Plaintiff claimed possession on the basis of decree passed in family settlement which was in civil court decree dated 18.5.1993. The said proceeding has been decided upto Hon’ble Supreme Court as mentioned by plaintiff in his reply. Here the question is not that whether the suit property falls in Khasra No.774/2 and 775/2. Plaintiff claim is only on the basis 3 CR No.7323 of 2011 of decree passed in family settlement. The appointment of Local commission will not be helpful to adjudicate upon the matter in controversy. The appointment of local commission is necessary only for those cases where identification of property is in dispute. Here in this case there is no dispute as the plaintiff is claiming ownership of residential house bearing MC No.15/4 situated in Indira Puri, Gurgaon. Plaintiff did not dispute about identification of property. The applicant/defendant No.2 claims this property of its own but it did not file counter claim of possession against plaintiff. In the light of these circumstances appointment of local commission is not going to serve any purpose in order to adjudicate upon the matter in controversy. The learned counsel placed reliance upon law laid down in Payare Lal v. Liquidator Cooperative Store Kapurthala, 2004, 573 (CCC). No doubt court has power to appoint local commission for the purpose of elucidating any matter in dispute but it is not a factual position in the present case. The law relied upon by learned counsel is not applicable in present case because here the identification of property is not disputed. Resultantly in view of aforesaid discussion, the present application found bereft of merit and same is hereby dismissed.” 8. No illegality or perversity could be pointed out in the impugned order warranting interference by this Court. 9. Finding no merit in the petition, the same is dismissed. December 12, 2011 (Ajay Kumar Mittal) ‘gs’ Judge 4