CR No.6810 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.6810 of 2010 (O&M) DATE OF DECISION: 15.10.2010 **** Joga Singh . . . . Petitioner Vs. Mehar Singh . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Sunil Agnihotri, Advocate for the petitioner. **** RAKESH KUMAR JAIN J. (ORAL) This revision petition is against the order dated 06.10.2010 passed by the Civil Judge (Jr. Division), Dasuya by which application filed by the plaintiff/petitioner under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for appointment of the Local Commissioner, has been dismissed. The case of the petitioner is that he has constructed the shops in the suit property after spending huge amount but the defendant denies this fact and is bent upon to dismantle his construction illegally and forcibly. During the pendency of the suit, he filed an application for appointment of the Local Commissioner in order to report about the actual and factual position of the suit property. The application was contested by the defendant alleging that the suit property was constructed by the said three brothers and the amount spent on construction was joint. The construction over the suit property in the shape of house was however, not denied. The learned trial Court dismissed the application of the plaintiff on the ground that the same is not maintainable. It was held that since the existence of shop is admitted by the defendant in his written statement, therefore, there is nothing for the Local Commissioner to visit the spot and CR No.6810 of 2010 (O&M) -2- report about the actual and factual position of the suit property and the question about the family settlement amongst the member of the family is not within the purview of the Local Commissioner as it is to be decided by the Court on the basis of the evidence which is to be led by the parties. Learned counsel for the petitioner has argued that the impugned order is patently illegal and without jurisdiction because he had filed the application only to find out the actual and factual position of the suit property. In support of his contention, he has relied upon a decision of the Madras high Court in the case of “Rangasamy Vs. The Superintending Engineer, Tamilnadu Electricity Board, Mettur Electricity System, Mettur Dam, Salem District & others” 2007(5) RCR (Civil) 68 to contend that the object of appointment of Local Commissioner is not to collect evidence but to clarify and explain any point which is doubtful. I have heard learned counsel for the petitioner. In my view, the present revision petition is totally frivolous because the existence of construction has already been admitted by the defendant in his written statement. Insofar as the question as to whether there was family settlement or not that has to be decided by the Court on the basis of evidence which is to be led by parties to the lis. In view thereof, I do not find any merit and as such the same is hereby dismissed with costs of `5,000/-. (RAKESH KUMAR JAIN) OCTOBER 15, 2010 JUDGE Vivek