BALBIR KAUR Vs. PUSHPA WIDGE

JUDGEMENT

(1.) THE petitioners have filed this petition under Article 227 of the Constitution of India for setting aside the order dated 10.12.2005, passed by Rent Controller, Amritsar, whereby their application under Order 26 Rules 1 and 4 and Order 16 Rule 19 of Civil Procedure Code for appointment of the Commissioner to record the statement of Kanti Lal has been dismissed.

(2.) IN this case, the petitioners filed two different ejectment applications under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 against Parmodh Kumar, the predecessor-in-interest of the respondents, for his ejectment from the shop in question on the ground of non-payment of rent and making additions and demolition of the roof of the demised shop. These two petitions were filed because of non-payment of rent for two different periods. During his evidence, the respondent denied the execution and his signatures on the letter dated 1.5.1980, which according to the petitioners was issued by the respondent to Kanti Lal. In rebuttal evidence, the petitioners wanted to examine one Sukhjinder Singh, a hand-writing expert and Kanti Lal to prove that the said letter bears signatures of the respondent Parmodh Kumar. The respondent allege this letter to be forged and fabricated one. On the additional issue as to whether the amount of Rs. 5,470/- and interest tendered by the respondent is liable to be refunded or not, the petitioners want to prove the signatures of the respondent on the aforesaid letter. The petitioners could not examine the said witness Kanti Lal because he is living at Mumbai. Therefore, they filed an application under Order 26 Rule 9 and Order 16 Rule 19 CPC for appointment of Commission to record the statement of Kanti Lal on ground that the said witness is suffering from the attack of paralysis and is an old man, therefore, he cannot bear long journey due to his sickness and infirmity. The said application has been dismissed on 10.12.2005. Hence, this petition has been filed by the petitioners.

(3.) ON the other hand, counsel for the respondents, while referring to two Division Bench decisions of this Court in Smt. Harvinder Kaur and another v. Godha Ram and another, AIR 1979 Punjab and Haryana 76 and Pritam Singh v. Sunder Lal, 1991(1) RRR 356 : 1990-2(98) PLR 191, submits that the order refusing to appoint the local commissioner under Order 26 Rule 9 CPC is not revisable under Section 115 CPC, therefore, such an order should not be interferred now under Article 227 of the Constitution of India. In this regard, he further relied upon a latest decision of this Court in Hari Om v. Minish Kumar, 2005(2) PLR 690. In the said case also, petition under Article 227 of the Constitution of India was filed against the order dismissing the application for appointment of local commissioner under Order 26 Rule 9 CPC and it was observed by this Court that if a revision petition under Section 115 CPC against the impugned order is not maintainable, then by mere change in the head-note of the petition, the substance cannot be replaced to wriggle out from the rigors of law which is well settled that no revision petition under Section 115 CPC is maintainable.