Kaura Ram vs Sheo Narain

S.S. Kang, J.—Kaura Ram has filed this revision against the order dated 16th September, 1983 of the learned Sub Judge IInd Class, Hissar, whereby he had rejected an application moved by the petitioner under Rule 9, Order 26 of the Code of Civil Procedure, for appointment of a Local Commissioner. It was averred in the application that the dispute between the parties was as to whether the suit land was part of Khasra No. 1121. The plaintiff-petitioner had clearly delineated the suit property in the site plan attached with the plaint. The land in possession of the defendant was also clearly demarcated therein. The plaintiff wanted to get the boundary of the land in dispute ascertained from the Local Commissioner. The application was resisted by the defendant. The learned trial Judge dismissed the same.

The revision petition is not competent. By declining to appoint a Local Commissioner, the learned trial Judge did not determine or adjudicate upon any right or obligation of the parties in controversy. Vide impugned order the learned trial Judge has not decided any case. It is not necessary to dilate on the subject because it stands concluded against the petitioner by the Division Bench Judgment of this Court in Harvinder Kaur v. Godha Ram ILR (1979) P&H. 147.

In that case the following question was referred for decision to the Division Bench :--

Whether revision lies against an order passed under Order 26. rule 9 of the CPC refusing to appoint a Local Commissioner ?

Relying on the decisions of the Supreme Court, the Bench observed :--

In the light of the aforesaid observation, without dilating any more on this subject, the meaning that can be given to the explanation is that an order made in the course of a suit or proceeding would be revisable only when it determines or adjudicates some right or obligation of the parties in controversy. Thus, a revision would lie against an interlocutory order only if it determines or adjudicates some right or obligation of the parties in controversy. However, even after the satisfaction of the aforesaid test the power of revision would be exercisable by this Court subject to the limitations put under sub-section (1) and the proviso to section 115 of the Code of Civil Procedure".

The revision petition was dismissed.

In fairness to Mr. Sarin it must be stated that he had argued that the matter had not been finally decided by the Division Bench. He drew my pointed attention to para 12 of Harvinder Kaur''s case (supra), where it has been observed that :--

It may, however, be made clear that it can not as a general rule be laid down that in no case, a revision would lie against an interolocutory order passed under any other provision of Order 26, and that it would be on the facts of each case that it will have to be found out whether the interlocutory order, against which a revision is sought to be filed, has adjudicated for the purposes of the suit some right or obligation of the parties in controversy or not.

It is clear even from the above observation that their Lordships have not left the question regarding the maintainability of revision against the orders passed by the Courts under Rule 9 of Order 26, Code of Civil Procedure, open. Their Lordships have clearly answered the question in para 11 of the afore-mentioned judgment that revision would lie against an order passed under Order 26, rule 9. In para 12 their Lordships have left the question of maintainability of revision petition against an order passed under any other provision of Order 26 undecided. In view of this authoritative decision of Harvinder Raw''s case, Mr. Sarin cannot seek any assistance from the contrary view expressed in Vencu Gopal Tari v. Nilconta S. Exete AIR 1975 Goa, D&D 32 and Lodna Colliery Co. v. Bholanath Rai AIR 1964 Cal. 233.

In the result, revision petition is dismissed. There shall, however, be no order as to costs. The parties through their counsel are directed to appear before the trial Court on 15th March, 1985.