DALMIR SINGH Vs. SANT PARKASH

JUDGEMENT

(1.) This is a petition for revision of the order, dated August 16, 1975, of the Court of Shri Surinder Singh, Subordinate Judge First Class Ambala City, declining to issue commission under Order 26 Rule 9, of the Code of Civil Procedure. The application was made by the defendant in the suit instituted against him by the plaintiff - respondents for possession of the property detailed in the plaint and for recovery of certain amount as mesne profits. In his application, dated May 24, 1975 the defendant stated that he had raised the objection in the written statement that the suit was not properly valued for purposes of court fee etc. and that the market value of the share of the house purchased from the vendor by the plaintiff was more than Rs. 5000/ - . It was than alleged that the defendant had spent about Rs. 8,000/ - on constructing the house and had also installed two tubewells in the land in dispute. It was in order to ascertain the market value of the property, mentioned above that local investigation was sought. In their written reply, dated 19th July, 1975, the plaintiff - respondents denied the allegation made in the application and stated that the defendant had himself valued the property at Rs. 150/ - in the suit for pre - emption and added that no local investigation was necessary and the defendants should be left to prove his case by leading evidence in Court. By his order under revision, the learned Subordinate Judge held that the case was at the stage of defendent's evidence and for proving the market - value of the property in dispute he can very well produce suitable evidence including an expert. The trial Court has observed that it was not expedient to appoint a Local Commissioner in the case for the additional reason that it would delay the proceedings in the suit which had been pending since December, 1971. Mr. S.K. Goyal, learned counsel for the plaintiff - respondents, has raised a preliminary objection to the effect that no revision lies against the order of the trial Court. He relies for this proposition on the judgment of P.S. Pattar, J. (as he then was) in Messrs Mohinder Kumar Rajinder Parkash v. Basheshar Nath,1976 PunLR 280, wherein it was held that the remedy of a party whose application for issue of a commission for local investigation has been declined is not by way of revision under Section 115 of the Code of Civil Procedure, but such a party can make it a ground of appeal if it becomes necessary to file an appeal against the final decree that may be passed in the suit. Pattar J. while so holding also followed the Judgment of H.R. Sodhi, J. (as he then was) in Mangal Singh and another v. Piara Lal,1971 PunLR 531, and various other cases. Mr. Lakhinder Singh has not been able to cite any authority to the contrary. In this view of the matter it is not necessary to go into the merits of the controversy, as that may prejudice one side or the other. It will be open to the defendant - petitioner to take up this objection in his appeal against any decree that may be passed against him by the trial Court.

(2.) The revision petition is accordingly dismissed, but parties are left to bear their own costs. Revision dismissed.