Civil Revision No. 3814 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Civil Revision No. 3814 of 2009 (O&M) Date of decision: 23.11.2009 Rajiv Kumar Batra ......petitioner Versus Kashmiri Lal Sika .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sandeep K.Sharma, Advocate. for the petitioner. Mr.Dinesh Arora, Advocate, for the respondent. **** SABINA, J. The plaintiff had filed a suit for possession alleging that he was owner of the suit land to the extent of 1/4th share. During the pendency of the suit, an application was filed by the plaintiff for appointment of the Local Commissioner to demarcate the suit land. Vide the impugned order dated 9.5.2009, the said application was dismissed. Hence, the present revision petition has been filed under Article 227 of the Constitution of India by the plaintiff-petitioner. Learned counsel for the petitioner has submitted that the Civil Revision No. 3814 of 2009 (O&M) 2 defendant had encroached upon portion of the land owned by the plaintiff. The defendant had also filed a counter claim that, in fact, the plaintiff had encroached upon the land owned by the defendant. In these circumstances, it was necessary for just decision of the case that a Local Commissioner be appointed to demarcate the land. In support of his arguments, learned counsel has placed reliance on the decision of this Court in Pohlu Ram vs. Gram Panchayat 1980 P.L.J. 24, wherein it was held that the point in dispute as to whether the plaintiff had encroached upon the circular road of the village could only be decided by making measurements on the spot and for this purpose it was necessary to appoint a local commissioner. Learned counsel for the petitioner has further placed reliance on the decision of this Court in Fateh Singh Saini vs. State of Haryana and others 1987 PLJ 351, wherein it was held that the party has a right to get a local commissioner appointed if the matter is such that it cannot be satisfactorily proved by other evidence. Learned counsel for the respondent, on the other hand, has submitted that the revision petition was not maintainable. Moreover, the application had been moved by the petitioner just to delay the decision of the case. In support of his arguments, learned counsel has placed reliance on the decision of this Court in Balbir Kaur and others vs. Pushpa Widge and others 2006(2) RCR (Civil) 319, wherein it was held that if an application had been filed after a long delay to summon a local commissioner as a witness with Civil Revision No. 3814 of 2009 (O&M) 3 an intention of delaying the proceedings then there was no justification for interfering in the order whereby the application was dismissed in the exercise of superintending jurisdiction under Article 227 of the Constitution of India. Learned counsel for the respondent has further placed reliance on the decision of this Court in Bant Singh @ Balwant Singh and another vs. Raghubir Singh and others 2008 (4) RCR (Civil) 260, wherein, in para 2, it was held as under:- “ This revision petition is not competent in view of the law laid down by this Court in the cases of Sumer Chand Jain v. Vishnu Bhagwan Mangla, 2006(2) RCR (Civil) 445 and Hari Om v. Minish Kumar,(2005-2) PLR 690 wherein this Court has been pleased to lay down that the order of appointing or refusing to appoint a Local Commissioner is not revisable.” Learned counsel for the respondent has also placed reliance on the decision of this Court in Sumer Chand Jain v. Vishnu Bhagwan Mangla, 2006(2) RCR (Civil) 445, wherein, in para 3, it was held as under:- “ In two Division Bench decisions of this Court in Smt.Harvinder Kaur and another v. Godha Ram and another, AIR 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 Civil Revision No. 3814 of 2009 (O&M) 4 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 by this Court that if a revision petition under Section 115 CPC 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 CPC is maintainable.” After hearing learned counsel for the parties, I am of the opinion that there is no ground for interference by this Court. Father of the plaintiff got the land demarcated from Arjun Dass retired Naib Tehsildar. An application was moved by the plaintiff for appointment of a Commission to examine the Local Commissioner Arjun Dass but the said application was rejected vide order dated 27.4.2007 by the trial Court. The said order was not challenged by the plaintiff. The application has been moved by the plaintiff for appointment of a Local Commissioner after the defendant has closed his evidence on 9.9.2008. The plaintiff had failed to prove the demarcation report prepared by Arjun Dass. Moreover, the revision petition is not maintainable against the order, whereby an application for appointment of a Local Commissioner has been Civil Revision No. 3814 of 2009 (O&M) 5 dismissed. The judgments relied upon by the learned counsel for the petitioner fails to advance the case of the petitioner. Hence, the impugned order does not suffer from any material irregularity and illegality warranting interference by this Court. Accordingly, this petition is dismissed. (SABINA) JUDGE November 23, 2009 anita