Dr. Bhagwant Pal Singh and another vs Municipal Committee Patiala and others

A.L. Bahri, J.—In this revision petition, the order under challenge is that of Sub Judge 1st Class, Patiala, dated January 14, 1987 whereby an application filed by the plaintiffs to review earlier order declining to appoint a new Local Commissioner was dismissed.

A suit was brought by Dr. Bhagwant Pal Singh and another against Municipal Committee, Patiala and others for the grant of permanent injunction restraining the defendants from interfering in their possession over the suit property. The suit was contested by the private defendants. After the issues were framed on May 26, 1983, the case remained pending and on September 17, 1983, on the application of the plaintiffs, a Local Commissioner was appointed to demarcate the disputed property. Although the Local Commissioner made the report on June 3, 1984, yet the same was produced in Court on December 10, 1984. Before that on July 28, 1984 when it was represented that the Commissioner was yet to visit the spot, directions were given to comply with the directions already given in the order of appointment of Local Commissioner. Objections to the report of the Local Commissioner were filed and on October 18, 1986, the report of the Local Commissioner was set aside. In that order, it was specifically mentioned that it was not necessary to appoint another Local Commissioner to demarcate the property of the plaintiffs. Thus, the plaintiffs were left to produce their own evidence, may be of Expert or Revenue Officer who could demarcate the property and could be produced. On the subsequent date of hearing, it was represented before the trial Court that a revision petition was contemplated to be filed against the said order in the High Court. However, after adjournment was sought, an application was filed under Order XLVII, rule 1, read with section 151 of the CPC for reconsideration of the order dated October 18, 1986 and for appointment of another Local Commissioner. This application was dismissed on January 14, 1987.

Learned counsel for the petitioners has argued that in case of demarcation of disputed properties, it is necessary to appoint a Local Commissioner Reliance has been sought on the decision of S.P. Goyal, J. in Pohlu Ram v. Gram Panchayat Dharamgarh alias Badowal (sic) P.L.J. 24. It was observed that such like matters could be decided only by making measurements at the spot and thus it was necessary to appoint a Local Commissioner. In my view, no benefit can be derived by the petitioners from the observations in the judgment referred to above. No doubt, at the initial stage of the suit, the trial Court appointed a Local Commissioner. It took about three years for the Local Commissioner to make the report and then to decide the objections. I need not refer to the ground on which the report of the Local Commissioner was set aside although the entire order accepting the objections against the report of the Local Commissioner has been reproduced in the impugned order. The fact remains that necessity to get the property measured was very much in the mind of the trial Court and that is why it was left to the plaintiffs to get the measurements done from an Expert or from a Revenue Officer and to produce him and his report in the Court. I find nothing wrong in such a direction as it is always a matter of discretion with the Court to appoint or not to appoint a Local Commissioner and in this case, this discretion has been wisely exercised. There was no legal obligation on the part of the trial Court to appoint another Commissioner J.V. Gupta, J. in Gurbachan Singh and others v. Amrik Singh and others (1983) 85 P.L.R. 253, negatived the argument that under the provisions of Order XXVI, rule 10, sub-clause (3) of the Code of Civil Procedure, the Court was under an obligation to appoint another Local Commissioner when it was dissatisfied with the proceedings of the Commission already appointed.

Although directions of the trial Court in the order dated October 18, 1986 were to the effect that the plaintiffs could produce another Expert or Revenue Officer after getting the property demarcated, the order was sought to be challenged by filing a revision petition. However, the said order was not challenged. Subsequently, an application for review was filed on November 25, 1986 which was beyond the period prescribed. The fact that no objection regarding limitation was taken in the reply filed by the present respondent will not make any difference. The trial Court chose to decline the request on merits. Thus, there was no necessity for saying that the application was time-barred. It has further been argued that in fact the application was not for review. However, I find no merit therein. The application was headed as under Order XLVII, rule 1, read with section 151 of the CPC and in the prayer clause, it was mentioned that order dated October 18, 1986 was sought to be reconsidered. It hardly makes any difference if the word ''review'' as such was not used in the prayer clause. For all intends and purposes, that application was for review of the earlier order. On perusal of the impugned order, I find no illegality or irregularity of procedure to interfere with the same.

For the reasons stated above, this revision petition is dismissed with costs.