M/s. Mohinder Kumar Rajinder Parkash vs Bashehshar Nath

P.S. Pattar, J.—This is a revision petition filed by Mohinder Kumar Plaintiff against the order dated June 14, 1973, of Sub Judge II Class, Kaithal, rejecting his application dated June 5, 1973, for appointment of a Local Commissioner to make measurements on the spot to determine whether the Plaintiffs were given possession of of land measuring 90'' � 10'' � 100''.

The facts of this case ate that the Defendant Bisheshar Nath Respondent agreed to lease out a plot measuring 100'' � 100'' out of Khasra No. 500, situated in Patti Kaysth Seth, Tehsil Kaithal, for a period of ten years from 1st December, 1969 to 30th November, 1969 on the basis of a registered rent dated 2 st January, 1970 for installing a petrol pump at an annual rent of Rs. 2500/- to the Plaintiffs Mohinder Kumar and Rajinder Parkash. However, according to the Plaintiffs they were given possession of plot measuring 90'' � 100'' at the spot as land measuring 10'' � 100'' by the side of Ambala Hissar Road did not belong to the Defendant. The Plaintiffs, therefore, filed suit against the Defendant for possession of land measuring 10'' � 100'' out of the land of the defendent adjoining the suit land. In the alternative it was prayed that they were entitled to the recovery of Rs. 750/- from the Defendant on account of the proportionate rent of land measuring 10'' x 100'' for the period from 1st December, 1969 to 30th November, 1972 as the possession of this land has not been given to them. The issues in this case were framed on 31st January. 1973 the case was fixed for evidence of the Plaintiff on 14th June, 1973. No witness of the Plaintiffs was present on that day nor they had summond any witness for that date. The Plaintiffs had made an application on 5th June 1973 for appointment of a Local Commissioner to make measurements on the spot whether possession of land measuring 90'' � 100'' was only given to them. The Subordinate Judge held that this application was made to delay the decision of the suit and be rejected the same and refused to issue a Local Commission. However, he ordered that one more adjournment is granted to the Plaintiffs on the condition that they shall produce their entire evidence on their own responsibility on the next hearing on payment of Rs. 25/- as Costs and the case was adjourned to 9th August, 1973. Feeling aggrieved, Mohinder Kumar Plaintiff filed this revision petition alleging that this order is wrong and incorrect and it may be set aside and the subordinate Judge may be directed to appoint a Local Commissioner as prayed for by them in their application.

At the outset Mr. S.K. Goyal, the Learned Counsel for the Respondent, raised a preliminary objection that the order rejecting the application for issue of a Local Commissioner,...the meaning of Section 115, CPC Code, and, therefore, this revision petition is not competent. In support of this contention he relied on a Single Bench judgment of our own High Court reported as Mangal Singh v. Piara Lal(sic) (1971)73 PLR 531, wherein it was held as under:

that issue of a commission is a matter of discretion of the Court which has of course to be exercised not capriciously or arbitrarily but judicially, according to the circumstances of each case. The whole object of the exercise of discretion is to examine proper administration of justice and if the issue of a commission tends to achieve that end, the Court will not be justified in refusing the request of a party in this regard. The remedy for a party if a commission is not issued as desired by it is not by revision u/s 115 of the CPC but the party can make it a ground of appeal it such an appeal becomes necessary against the final decree itself. The order refusing a commission is just an interlocutory one and cannot be said to be case within the meaning of Section 115 of the Code of Civil Procedure.

A Division Bench of the Allahabad High Court held in Gamhbir Mal Pandya v. George Anthony John AIR 7934 All. 37(2):

The Court has Jurisdiction to dispose of the application for examination of witnesses on commission. An order rejecting the application cannot be said to be without jurisdiction nor can the judge be considered to have exercised it illegally or with material irregularity only became he took an erroneous view on a question arising in the case. An interlocutory order like the one in question cannot be said to amount to a decision of the case within the meaning of Section 115 (Civil Procedure Code).

To the same effect was the law laid down by a Division Bench of the Sind High Court in Shanibai v. Motiram Sitaram AIR 1946 Sind 30, and AIR 1942 344 (Oudh) In all these decisions it was held that an order retusing to issue a Commission is only an interlocutory order and does not amount to a case decided and so no revision lies u/s 115, CPC Code, to set it aside. In view of the law laid down in these cases the preliminary objection raised by Mr. Goyal must prevail and this revision petition must be dismissed. The remedy of a party if a Commission is not issued as desired by it is not by way of revision u/s 115, CPC Code, but it can make it a ground of appeal if the appeal becomes necessary against the final decree passed against it.

As against this, the Learned Counsel for the Petitioners cited Ramji Rajde v. Kuvarbai Veiji AIR 1954 Kutch 53, and M.J. Sheth and Company Ramize Bi. AIR 1938 Mad 645. In both these peases it was decided that a revision lies against an order dismissing an application for the issue of a Commission. Both these cases are Single Bench decisions and with due respect I am unable to agree with the view taken in these decisions in view of the law laid down in the above-mentioned cases cited by the counsel for the Respondent. As a result, the preliminary objection raised by the counsel for the Respondent is accepted and it is held that this revision petition is not competent and the same is dismissed. There will be no order as to costs.