IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 1873 of 2010 Date of decision: June 01, 2011 The Bassi Arkh Scheduled Caste Coop. Land Owing Society Ltd. .. Petitioner Vs. Atma Singh son of Bachan Singh and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Arihant Jain, Advocate for the petitioner. Mr. Amarjit Markan, Advocate for respondents No.1, 5 and 6 to 13. A.N. Jindal, J This petition has arisen out of the order dated 8.3.2010 passed by the Additional District Judge, Sangrur, allowing the application filed by the applicant- defendant No.3 for appointment of the Local Commissioner with a direction to conduct demarcation of the land in dispute and to find out if any construction/ houses are existing thereon. The factual background of the case is that the civil suit No.206 of 12.6.1981 was filed by the Bassi Arakh Scheduled Caste Cooperative Land Owning Society Limited against the defendant Teja Singh and others for seeking permanent injunction restraining the defendants from dispossessing the society from the land measuring 12 kanals 10 marlas as fully detailed in the head note of the plaint. After both the parties led evidence, the said suit was decreed by the trial court on 17.4.1982. The appeal against the said order was filed which was also dismissed on 8.2.1983. The defendants filed the Regular Second Appeal in the year 1983 which was accepted and the case was remanded back on 11.5.2005 with the following observations :- “.... In view of the above, since certain material documents have not been taken into account by the courts below, the findings recorded by the courts below are vitiated. Counsel for Civil Revision No. 1873 of 2010 -2- *** the parties seek opportunity to produce more documentary evidence. Applications for additional evidence have been filed along with some documents. Instead of re-appreciating the evidence in second appeal, it will be desirable that the matter is decided by the Trial Court again after taking into account the entire material on the record and giving one opportunity each to the parties to lead any additional evidence at their own responsibility. May 11, 2005 Sd/- Judge” After remand, the plaintiff society moved an application for amendment of the plaint which was dismissed by the trial court on 3.8.2005 and the revision petition No.4172 of 2005 filed by the plaintiff- society was dismissed as withdrawn on 23.8.2005. Learned Civil Judge after hearing learned counsel for both the parties again decreed the suit of the plaintiff on 23.8.2007. However, during the pendency of the appeal, the defendant Atma Singh moved an application on 5.10.2007 for the appointment of the Local Commissioner in order to ascertain the actual position at the spot regarding the suit property. Notice of the application was issued and the case was adjourned for 13.11.2007 for consideration. Without getting decision on the application, the appellant moved another application on 22.2.2010 for appointment of the Local Commissioner while concealing the earlier application which was accepted by the court and Local Commissioner was appointed for demarcation of the land and to find out if any construction has been raised. Reply to the application was filed, wherein it was submitted that the defendant Atma Singh had concealed the material facts. The trial court had also dismissed the application for appointment of the Local Commissioner on 13.4.2007. The application filed by him earlier, before the Appellate Court has also not been decided so far. It was also urged that this application filed after 24 years of the suit is misconceived and has been filed just to delay and frustrate the decree. It was also submitted that there is no plea in the written statement with regard to existence of the Civil Revision No. 1873 of 2010 -3- *** construction in the land in dispute, therefore, now no amount of evidence could be taken into consideration beyond pleadings. However, the first appellate court allowed this application, hence this petition. Arguments heard. Learned counsel for the petitioner has submitted that as a matter of fact the application for appointment of the Local Commissioner is strictly against the directions issued in the remand order. The remand order required the trial court to provide one opportunity to each party to lead evidence and decide the case afresh. The first appellate court never kept the issue open with regard to appointment of the Local Commissioner and to decide the case on the basis of the same. It was further urged that the defendant had never set up any plea with regard to any construction over the suit land and no such application was filed by the defendants at the time when regular second appeal was pending in the High Court. Now at the fag end of the appeal, after 25 years of the pendency of the litigation, the defendant cannot come to contend that he had already raised construction over the suit property that too prior to the filing of the suit in the year 1981 and no amount of evidence could be taken into consideration beyond pleadings and the issues. This application has been filed in order to create evidence which is beyond the scope of the Local Commissioner. Being oblivious of the fact that intention of this Court to remand the case after 24 years of the filing of the suit was to decide the case on the basis of the material placed on record. For imparting substantial justice, the parties were still allowed to lead evidence and each party was given one opportunity to lead evidence. At that time, defendant did not lead any evidence to claim any construction over the property in dispute. The application filed by the defendant for appointment of the Local Commissioner was dismissed. No such application was filed when the regular second appeal was pending in the High Court. But the learned counsel for the respondents has submitted that the revision petition is liable to be dismissed being not maintainable. In this regard he has referred to the basic judgments delivered in case Smt. Harvinder Kaur and another v. Godha Ram and another, AIAR 1979 Punjab and Haryana 76 and Pritam Singh v. Sunder Lal, 1991 (1) RRR 356 : (1990-2) 98 PLR 191 which was Civil Revision No. 1873 of 2010 -4- *** referred in the judgment delivered in case Sumer Chand Jain v. Vishnu Bhagwan Mangla, 2006 (2) RCR (Civil) 445 wherein it was observed as under :- “In two Division Bench decisions of this Court in Smt. Harvinder Kaur and another v. Godha Ram and another, AIAR 1979 Punjab and Haryana 76 and Pritam Singh v. Sunder Lal, 1991 (1) RRR 356 : (1990-2) 98 PLR 191, it has been held that the order refusing to appoint the Local Commissioner under Order 26, Rule 9 CPC is not revisable under Section 115 CPC, therefore, such an order should not be interfered now under Article 227 of the Constitution of India. In this regard, in Hari Om v. Minish Kumar, (2005-2) PLR 690, it was observed this Court that if a revision petition under Section 115 C.P.C. against the impugned order is not maintainable, then by mere change in the head note of the petition, the substance cannot be replaced to wriggle out from the rigors of law which is well settled that no revision petition under Section 115 C.P.C. is maintainable.” The aforesaid judgments were followed by this Court in case Rajiv Kumar Batra v. Kashmiri Lal Sika, 2010 (1) Civ. C.C. 341. It was further observed in Hari Om's case (supra), that order appointing or refusing to appoint Local Commissioner is not revisable and it does not decide the rights of the parties. Smt. Harvinder Kaur's case (supra) was also referred to the larger Bench in an another case wherein the larger Bench in case Pritam Singh and another v. Sunder Lal and others 1990 (2) P.L.R. 191 observed as under :- “After going through the judgments cited in the reference order, we do not find that the earlier judgment in Harvinder Kaur's case (supra) requires any re- consideration. The order refusing to appoint a Local Commissioner does not decide any issue, nor adjudicate rights of the parties for the purpose of the suit and is, therefore, not revisable. The distinction sought to Civil Revision No. 1873 of 2010 -5- *** be made by the learned Single Judge in view of the judgment in M/s. Sadhu Ram Bali Ram's case (supra) clearly noticed by the Division Bench in Harvinder Kaur's case (supra) and it was observed, - “It may be observed that the facts of M/s Sadhu Ram Bali Ram's case were different as in that case the onus had been wrongly placed and while deciding that question, it was held that such an order would be revisable.” Apart from that, placing the onus on an issue has something to do with the rights of the parties, whereas refusing to appoint a Commission under Order 26 Rule 9, Code of Civil Procedure, has nothing to do with the rights of the parties as such. It is the discretion of the Court to appoint a Commission thereunder and if the Court refuses to appoint a Commission, then no right of any party can be said to be prejudiced as such.” But, in the instant case, an application for appointment of the Local Commissioner was allowed, then the question arises, “whether the said application would be acceptable or not?” The Supreme Court had a chance to decide upon the same in a case Rajinder & Co. vs. Union of India and others, 2003 (1) R.C.R. (Civil) 755 : 2002 (2) P.L.J. 576 : 2000 (6) S.C.C. 506 wherein it was observed as under :- “2. We cannot appreciate why the High Court had interfered with that part of the order passed by the trial Court appointing a commission for inspecting the site and to file a report and to measure the work done by Respondent. The learned counsel for the appellants submits that respondent will not be made responsible for the cost or expenses which may be involved in the commission to file the report. The question whether the Commissioner's report is finally acceptable or not would be Civil Revision No. 1873 of 2010 -6- *** decided by the Court de hors the order passed by the authority concerned. In the light of the said innocuous position it was not necessary for the High Court to alter the trial Court's order. We, therefore, set aside the impugned order of the High Court and restore the order of the trial Court in full measure, with the rider that this action will be without prejudice to the rights of the parties to substantiate the respective contentions regarding the tenability or untenability of the Commissioner's report and its conclusions. 3. The appeal is disposed of. Ordered accordingly.” In the instant case, in view of the settled proposition of law, I am reluctant to interfere with the impugned order which has been challenged by way of revision petition. As such, the same is dismissed and I leave it to the first appellate court to see as to whether the report would be acceptable and what is the value of the report made by the Local Commissioner. However, since the parties have been litigating for the last 30 years and lot of evidence has been led on the record to prove their possession respectively, therefore, the appellate court would remain confined to read the evidence within the scope of the pleadings and not beyond that and decide the case as per position which was existing at the time of filing of the suit. June 01, 2011 (A.N. Jindal) deepak Judge