Punjab-Haryana High Court
Malkiat Singh vs Narinder Singh And Another on 12 December, 2011
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 7646 of 2011(O&M)
Date of Decision: December 12, 2011.
Malkiat Singh.
...... PETITIONER(s)
Versus
Narinder Singh and another.
...... RESPONDENT (s)
CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr. Baljeet Singh,
Advocate for the petitioner.
*****
RAM CHAND GUPTA, J.(Oral)
Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside impugned order dated 07.11.2011 passed by learned Civil Judge(Junior Division), Mukerian vide which application for appointment of Local Commission was dismissed.
I have heard learned counsel for the petitioner and have gone through the whole record including the impugned order passed by learned trial Court.
CR No.7646 of 2010 2
Brief facts relevant for the decision of present revision petition are that, petitioner-plaintiff filed suit for possession of the property in dispute on the plea that the same was illegally encroached upon by respondents- defendants.
On notice being issued, respondents-defendants filed written statement by taking the plea that they have purchased the property in dispute during pendency of partition proceedings between co-owners and the possession was given to respondents-defendants by the co-owners during partition proceedings. An application was filed by petitioner-plaintiff to appoint some revenue officer to demarcate the property in dispute. However, the application was declined by learned trial Court by observing that the petitioner-plaintiff has not come to the Court with clean hands and that he has not mentioned about the partition proceedings and partition order dated 11.12.1996.
Law is well settled by this Court in various judgments that no revision lies against the order passed by learned trial Court refusing to appoint Local Commissioner in its discretion. Hence, discretion exercised by learned trial Court cannot be interfered by this Court in its revisional jurisdiction, either under Section 115 of Code of Civil Procedure or under Article 227 of the Constitution of India.
In Pritam Singh and another v. Sunder Lal and others, 1990 (2) PLR 191: 1990 PLJ 418: 1991(1) RRR 356: 1990(2) LJR 244, a Division Bench of this Court by relying upon the decision of this Court rendered in Harvinder Kaur v. Godha Ram, ILR 1979(1) Punjab and Haryana 147 has CR No.7646 of 2010 3 observed that no revision would lie against an order passed under Order 26 Rule 9 of the Code.
This Court in subsequent judgment rendered in Sumer Chand Jain v. Vishnu Bhagwan Mangla, 2006(2) RCR (Civil) 445: 2006(2) PLR 844: 2006(1) PLJ 59 by placing reliance upon Harvinder Kaur's case (supra) and Pritam Singh's case (supra) observed 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 appoint the Local Commissioner under Order 26 Rule 9 C.P.C. is not revisable under Section 115 C.P.C., 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 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."
On the same point are the decisions of this Court in subsequent judgments rendered in Bant Singh alias Balwant Singh and another v. Raghubir Singh and others, 2008(4) RCR (Civil) 260: 2008(2) RCR (Rent) 297 and Rajiv Kumar Batra v. Kashmiri Lal Sika, 2010(6) RCR (Civil) 37 in which also it was held that revision petition either under Article 227 of the Constitution of India or under Section 115 of the Code is not maintainable CR No.7646 of 2010 4 against an order dismissing application for appointment of Local Commissioner.
Sufficient reasons have been given by learned trial Court in rejecting the prayer of petitioner for appointment of Local Commissioner. Court is not to collect evidence for the parties. It is for the parties to prove its case.
In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.
Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others, 2003(6) SCC 675: AIR 2003 SC 3044: 2004(1) RCR (Civil) 147 that supervisory jurisdiction is not available to be exercised for indulging in re-appreciation or evaluation of evidence or correcting the errors for drawing inference like a Court of appeal. It has been observed as under:-
"Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby."
Hence, the present revision petition is, hereby, dismissed being devoid of any merit.
CR No.7646 of 2010 5
( RAM CHAND GUPTA ) December 12, 2011. JUDGE 'om'