Punjab-Haryana High Court
Babu Ram Gupta vs Ram Pal Singh And Another on 29 May, 2009
Author: A.N. Jindal
Bench: A.N. Jindal
In the High Court of Punjab and Haryana at Chandigarh
Civil Revision No. 1404 of 2009
Date of decision: May 29, 2009
Babu Ram Gupta
.. Petitioner
Vs.
Ram Pal Singh and another
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Pritam Saini, Advocate for the petitioner.
Mr. S.S. Dinarpur, Advocate for the respondent No.1.
A.N. Jindal, J
This is a petition under Article 227 of the Constitution of India
for quashing the orders dated 16.7.2007 (Annexure P/4) and 26.2.2009
(Annexure P/5) passed by the Civil Judge (Sr. Division), Kurukshetra.
The petitioner has challenged the order dated 16.7.2007 on the
ground that since the evidence of the plaintiff has been closed, therefore, the
court could not entertain the application for appointment of Local
Commissioner moved by the plaintiff-respondent (herein referred as 'the
respondent') and vide second order dated 26.2.2009 the application for
appointment of Local Commissioner was allowed.
While confronting with the question, whether the order is
revisable, then learned counsel while referring to the judgment rendered in
case Surya Dev Rai vs. Ram Chander Rai and others, AIR 2003 Supreme
Court 3044 (1) has contended that this court is vested with the full powers
under Article 227 of the Constitution of India to supervise any interim
orders passed by the courts below. He has also referred to the judgment
delivered in case Jagdev Singh and others vs. Darshan Singh and others
AIR 2007 Punjab & Haryana 118, wherein it was observed as under :-
"4. In view of the above, the reference of DB that was made
by the learned Single Judge vide order dated 16.11.1999 no
longer survives. In any case, as held in Salem Advocate Bar
Association's case (AIR 2005 SC 3353)(supra), a revision
Civil Revision No. 1404 of 2009 -2-
***
against an order passed by an inferior Court can always be entertained in exercise of the powers of this Court under Art. 227 of the Constitution of India. The present petition though has been filed under Section 115, C.P.C., however, the nomenclature under which the same is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which it otherwise possesses unless there is a special procedure prescribed which procedure is mandatory. In a case where the Court finds that the petitioner could not invoke the jurisdiction of this Court under Section 115 of the C.P.C., the Court can certainly treat the petition to be one under Art. 227 of the Constitution of India. In fact this Court in M/s Ajit Cotton Ginning Pressing Daal and Steel Rolling Mills and others v. Steel Authority of India C.R. No. 582 of 2004 decided on 28.2.2005 vide a detailed order has held that a petition filed under Section 115, C.P.C. can be treated to be one under Art. 227 of the Constitution of India. The following observations are apposite :-
"By virtue of amendment in Code of Civil Procedure 1908, w.e.f. 1.7.2002, the revisional jurisdiction of the High Court under Section 115 of the Code has been curtailed but, such amendment cannot and does not affect in any manner the jurisdiction of the High Court under Arts. 226 and 227 of the Constitution. The interlocutory orders passed by the Courts subordinate to the High Court against which remedy of revision has been excluded by virtue of Code of Civil Procedure Amendment Act No.46 of 1999, are nevertheless open to challenge and continue to be subject to certiorari and supervisory jurisdiction of the High Court. The curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to the civil Court nor the power of Civil Revision No. 1404 of 2009 -3- *** superintendence conferred on the High Court under Art. 227 of the Constitution is taken away or whittled down. Reference may be made to judgment of the Supreme Court reported as Surya Dev Rai v. Rai Chander Rai and others, AIR 2003 SC 3044, wherein it was held to the following effect :-
"We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to the civil court nor the power of superintendence conferred on the High Court under Art. 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled."
Having examined the aforesaid judgment, there is no dispute with the aforesaid proposition that the interim order which determine the right of the parties, effect or cause prejudice to them, could be examined by this court while exercising powers under Article 227 of the Constitution of India, and it is not each and every interim order, which relates to the procedure and does not cause any prejudice or effect their rights can be put to revision. The Apex Court in case Rajinder & Co. vs. Union of India and others, 2003 (1) RCR (Civil) 755 observed that appointment and declining the application for appointment of the commission does not in any way effect the rights of the parties. The question whether the Commissioner's report is finally acceptable or not would be decided by the Court de hors the order passed by the authorities concerned. The High Court cannot interfere with such order of the trial court appointing the commission for inspecting the site and to file report.
In any case, if the court has exercised the powers while Civil Revision No. 1404 of 2009 -4- *** appointing Local Commissioner for satisfying himself as to about the actual position at the spot, then the parties should not feel apprehended by these reports. As such, the revision against this order is discouraged. It has been observed in case Mytheen Kunju Ahammed Kunju vs. P.A. Azeez kunju, AIR 1994 NOC 287 (Kerala) wherein it was observed that the order appointing the commission or refusing to appoint the commission is not revisable. It was also observed by this Court in case Smt. Harvinder Kaur and another vs. Godha Ram and another, 1979 P.L.J. 562 that revision against the order refusing or appointing the Local Commissioner is not maintainable.
As such, the provisions of Article 227 of the Constitution of India cannot be used as a device to invoke extra ordinary supervisory jurisdiction of this Court.
Resultantly, finding no merit in the petition, the same is dismissed.
May 29, 2009 (A.N. Jindal) deepak Judge