Civil Revision No. 6394 of 2011 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 6394 of 2011 Date of decision. 19.10.2011 Ishar Singh .... Petitioner Versus Malkit Singh and others ...... Respondents CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr.Tejinder Pal Singh, Advocate for the petitioner. **** Vijender Singh Malik, J. Ishar Singh, defendant no.1 has brought this revision petition under the provisions of Article 227 of the Constitution of India for setting aside the order dated 15.10.2011 passed by learned Civil Judge (Junior Division), Sunam, vide which the application of the plaintiffs filed under the provisions of Order 26 Rule 9 CPC has been allowed and Shri Harwinder Happy has been appointed as local commission to visit the spot after giving notice to both the parties and to report about the existence or otherwise of water course in the suit land. Malkit Singh and Nardip Singh @ Makhan Singh, plaintiffs had brought a suit for possession. The plaintiffs had denied the existence of a water course in the suit land while the defendants had alleged existence thereof in the same. For finding out the actual position at the Civil Revision No. 6394 of 2011 --2-- spot, local commission was prayed to be appointed by the plaintiffs by making application under Order 26 Rule 9 CPC The application was opposed by the defendant alleging that he has rightly mentioned about the existence of water course in the suit land. Hearing learned counsel for the parties, learned trial court vide order dated 15.10.2011 has appointed Sh. Harwinder Happy as local commission to do the aforesaid job. Aggrieved by the aforesaid order, defendant no.1 has brought this revision petition. I have heard Shri Tejinder Pal Singh, learned counsel for the petitioner and have gone through the record carefully. Learned counsel for the petitioner has submitted that on the same subject matter, the petitioner had filed a suit earlier, which has been decided in his favour. According to him, this suit has been filed by the plaintiffs now and they claim that there is no water course existing in the suit land. According to him, local commission could not be appointed in this situation. The submission of learned counsel for the petitioner cannot be accepted for the simple reason that the petitioner can take a plea of res-judicata if a suit having the same subject matter between the same parties has already been decided and the filing of the present suit on the same subject matter has been barred by the provisions of section 11 CPC. This aspect has no concern with the prayer for appointment of local Civil Revision No. 6394 of 2011 --3-- commission. The dispute before learned trial court has been about the existence or absence of a water course in the suit land. This fact could be very well ascertained by a local commission by visiting the spot. No submission is made to question the maintainability of the application under the provisions of order 26 Rule 9 CPC in the given situation. When learned trial court has appointed a local commission and directed it to visit the spot after giving due notice to both the parties about his proposed visit thereto for finding out if any water course exists in the suit land or not, no exception in law can be taken to the same. Hence, I find no merit in the revision petition and dismiss the same. (VIJENDER SINGH MALIK) 19.10.2011 JUDGE dinesh