NIRMAL PRASAD YADAV Vs. KAPURCHAND

JUDGEMENT

(1.) ALL the three writ petitions under Ari 227 of the Constitution of India were filed before the learned single Judge who has referred the same for decision by the Division Bench due to the importance of the matter on the point whether a revision lies before the District Court or not. The District Court by its order dated 22.4.1996 set aside the order passed by the trial Court and directed appointment of Commissioner under Order 26 Rule 9 C.P.C.

(2.) IN order to appreciate the controversy involved in the case, it would be proper to point out at the outset that earlier as per the M.P. Amendment Act, power under Section 115 C.P.C. was given to the District Court. Subsequently, by an amendment, that power has been restored back to the High Court. The present case was decided by the District Court under Section 115 C.P.C. as the District Court had, at the relevant time, jurisdiction to decide the matter in revision petition.

(3.) AGGRIEVED by the order of the learned Additional District Judge, Sakti, District Bilaspur dated 22.4.1996, three writ petitions were filed by Nirmal Prasad Yadav before this Court. During the course of arguments, before the learned single Judge, question arose whether the District Judge has jurisdiction under Section 115 C.P.C. to interfere with the order passed by the trial Court rejecting the application for appointment of Commissioner under Order 26 Rule 9 C.P.C. Therefore, the learned Single Judge has referred this question whether the revision is maintainable before the District Court or not. The learned single Judge has referred to the decision of Punjab and Haryana High Court in the case of Smt. Harvinder Kaur and another Vs. Godha Ram and another (1) wherein it has been held that order refusing to appoint Local Commissioner is not a case decided and is not revisable. Learned Single Judge has also referred to a decision of Madras High Court in the case of Ponnusamy Pandaram vs. The Salem Vaiyappamalai Jangawar Sangam (2) in which a contrary view has been taken that such an order falls within the expression 'case decided' and therefore the order is revisable. We have heard learned counsel for parties.