Punjab-Haryana High Court
Sumer Chand Jain vs Vishnu Bhagwan Mangla on 20 February, 2006
Equivalent citations: (2006)143PLR844
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. Petitioner Sumer Chand Jain, who is the defendant in the main suit, has filed this petition under Article 227 of the Constitution of India for setting aside the part of the order dated 14.3.2005 passed by the Additional District Judge, Gurgaon, whereby his prayer for appointment of the Local Commissioner has been declined. However, by the said order, his application for leading additional evidence has been allowed. The case of the petitioner is that his prayer for appointment of the Local Commissioner has been wrongly declined.
2. I have heard the counsel for the petitioner. In this case, a suit for permanent injunction filed by the plaintiff-respondent was decreed with costs. Against the said judgment and decree, an appeal was filed by the petitioner. The first Appellate Court allowed the prayer of the petitioner to produce two site plans as additional evidence, as they are part of the judicial record. However, the prayer of the petitioner for appointment of the Local Commissioner has been rejected on the ground that in the trial Court a Local Commissioner was appointed, who visited the spot in the presence of the parties and filed his report along with site plan and memo of presence (Ex.P7 to P10) in the Court. It has also been mentioned that no objection was raised by the petitioner to the report of the said Local Commissioner. In these circumstances, the prayer of the petitioner at the appellate stage for appointment of the Local Commissioner was declined.
3. In two Division Bench decisions of this Court in Smt. Harvinder Kaur and Anr. v. Godha Ram and Anr. and Pritam Singh v. Sunder Lal , 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 , 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.
4. In view of the aforesaid, I do not find any illegality or infirmity in the impugned order. In my opinion, no exceptional case has been made out by the petitioner for interference in the said order in the superintending powers of this Court under Article 227 of the Constitution of India.
5. Dismissed.