BIJENDRA MISHRA Vs. JAGDISH MISHRA

JUDGEMENT

(1.) Through this civil revision application the plaintiffs pray to set aside an order rejecting their petition dated 10-9-1986, through which they had prayed for appointment of a survey knowing advocate commissioner, on the grounds inter alia that the proposed appointment will not be of any use to either side or in deciding the suit and that the points raised therein can be decided on the basis of the evidence adduced by the parties.

(2.) Mr. Umashankar Singh No. 2, learned counsel for the petitioners contends that even though the impugned order is interlocutory in nature, it has been passed by completely misconceiving the provisions of Order XXVI, Rule 9 of the Code of Civil Procedure (hereinafter referred to as the Code') and as it amounts to 'case decided' within the meaning of sub-section (1) of Section 115 of the Code and covered by the explanation attached under sub-section (2) of the aforementioned section, is liable to be set aside in civil revision. Mr. Singh in support of his propositions relied on Ramji Ram v. Ramashre Raut, AIR 1924 Pat 761 (it) Ram Kirpal Missir v. Mahesh Pandey, AIR 1952 Pat 137.

(3.) In AIR 1952 Pat 137 after relying upon certain observations in AIR 1924 Pat 761 (supra) an order appointing pleader Commissioner was set aside in revision under Section 115 of the Code on the ground that there would be calamitious waste of time and money if a roving enquiry, as ordered by the Munsif, is made still the Munsif was left with a discretion to issue a fresh commission after strictly following the provisions under Order XXVI, Rule 9 of the Code.