PARVEEN BHATIA AND ANR. Vs. SHREE BAIDYANATH

JUDGEMENT

(1.) THIS revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') is directed against the order dated 24.11.2001 passed by the Civil Judge (Junior Division), Ludhiana allowing the application filed by plaintiff -respondent under order XXVI Rule 9 of the Code.

(2.) BRIEF facts of the case unfolded in the present revision petition and necessary to decide the controversy raised before this Court are that the plaintiff -respondent filed a civil suit No. 442 dated 2.11.2001 against the defendant -petitioners for permanent injunction restraining them from interfering in any manner in removing the stocks of Ayurvedic and other medicines along with all the records, stocks, account books and promotional material etc. The plaintiff -respondent claimed that it is the principal owner whereas the defendant -petitioners were the clearing and forwarding agents of the plaintiff -respondent who were having godown situated at Ludhiana which is more fully described in the plaint. The defendant -petitioners have alleged that the plaintiff -respondent and its employees have taken over the forcible possession of the office -cum -godown which belongs to them as they are the clearing and forwarding agents of the plaintiff -respondent. He further claimed that on 19.10.2001 when the possession of the godown was forcibly taken by 5/6 unknown persons, he reported the matter to the police. Me has also alleged that after taking over forcible possession of the office -cum -godown, the plaintiff -respondent has removed account books, ledgers and cash amount of Rs. 1,47,600/ -. Alongwith the suit an application seeking appointment of a Local Commission under Order XXVI Rule 9 of the Code was also filed. Notice of the application was given to the defendant -petitioners who in reply opposed the appointment of Local Commission asserting that the plaintiff -respondent through its authorised signatory Shri Salash Sharma was already in physical possession of office -cum -godown belonging to defendant -petitioners alongwith stock of medicines, promotional material, account books, ledger, stock statement etc. It was further submitted that the plaintiff -respondent is already in illegal possession and had siphoned off the stocks in connivance with one Shri Anurag Sharma and alleged CEO. The application for Local Commission was allowed and the operative part of the order dated 24.11.2001 reads as under:

(3.) ON the other hand, Shri Sumeet Mahajan, learned counsel for the plaintiff -respondent has submitted that no revision petition is competent against the order passed under Order XXV! Rule 9 of the Code appointing or refusing to appoint a Local Commission. In support of his submission, learned counsel has placed reliance on a Division Bench Judgment of this Court in the case of Smt. Harvinder Kaur and Anr. v. Godha Ram and Anr.1979 P.L.J. 562 because the rational underlining the non -maintainability of the revision petition under Section 115 of the Code is that an order allowing the application for appointment of the Local Commission or refusal to appoint the Local Commissioner is not a case decided. Similar view has been followed by another Division Bench of this Court in the case of Pritam Singh v. Sunder Lal . Therefore, according to the learned counsel, the revision petition is liable to be dismissed on that ground. However, he has further argued that on merit also it would be necessary to ascertain the position of stock in the office -cum -godown of the defendant -petitioners.