Judgment:
A.N. Jindal, J.
1. This is a petition under Article 227 of the Constitution of India for quashing the orders dated 16.7.2007 (Annexure P/4) and 26.2.2009 (Annexure P/5) passed by the Civil Judge (Sr. Division), Kurukshetra.
2. The petitioner has challenged the order dated 16.7.2007 on the ground that since the evidence of the plaintiff has been closed, therefore, the court could not entertain the application for appointment of Local Commissioner moved by the plaintiff-respondent (herein referred as 'the respondent') and vide second order dated 26.2.2009 the application for appointment of Local Commissioner was allowed.
3. While confronting with the question, whether the order is reyisable, then learned Counsel while referring to the judgment rendered in case Surya Dev Rai v. Ram Chander Rai and Ors. : A.I.R. 2003 Supreme Court 3044 (1) has contended that this Court is vested with the full powers under Article 227 of the Constitution of India to supervise any interim orders passed by the courts below. He has also referred to the judgment delivered in case Jagdev Singh and Ors. v. Darshan Singh and Ors. (2007) 146 P.L.R. 315, wherein it was observed as under:
4. In view of the above, the reference to DB that was made by the learned Single Judge vide order dated 16.11.1999 no longer survives. In any case, as held in Salem Advocate Bar Association's case : A.I.R. 2005 S.C. 3353 (supra), a revision against an order passed by an inferior Court can always be entertained in exercise of the powers of this Court under Article 227 of the Constitution of India. The present petition though has been filed under Section 115, C.P.C., however, the nomenclature under which the same is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which it otherwise possesses unless there is a special procedure prescribed which procedure is mandatory. In a case where the Court finds that the petitioner could not invoke the jurisdiction of this Court under Section 115 of the C.P.C., the Court can certainly treat the petition to be one under Article 227 of the Constitution of India. In fact this Court in Ajit Cotton Ginning Pressing Daal and Steel Rolling Mills and Ors. v. Steel Authority of India C.R. No. 582 of 2004 decided on 28.2.2005 vide a detailed order has held that a petition filed under Section 115, C.P.C. can be treated to be one under Article 227 of the Constitution of India. The following observations are apposite:
By virtue of amendment in Code of Civil Procedure 1908, w.e.t. 1.7.2002, the revisional jurisdiction of the High Court under Section 115 of the Code has been curtailed but, such amendment cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. The interlocutory orders passed by the Courts subordinate to the High Court against which remedy of revision has been excluded by virtue of Code of Civil Procedure Amendment Act No. 46 of 1999, are nevertheless open to challenge and continue to be subject to certiorari and supervisory jurisdiction of the High Court. The curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to the civil Court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. Reference may be made to judgment of the Supreme Court reported as Surya Dev Rai v. Rai Chander Rai and Ors. : A.I.R. 2003 S.C. 3044, wherein it was held to the following effect:
We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to the civil court nor the power of superintendence conferred on the High Court under Article 227 of tne Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled.
4. Having examined the aforesaid judgment, there is no dispute with the aforesaid proposition that the interim order which determine the right of the parties, effect or cause prejudice to them, could be examined by this Court while exercising powers under Article 227 of the Constitution of India, and it is not each and every interim order, which relates to the procedure and does not cause any prejudice or effect their rights can be put to revision. The Apex Court in case Rajinder & Co. v. Union of India and Ors. 2003(1) R.C.R. (Civil) 755 observed that appointment and declining the application for appointment of the commission does not in any way effect the rights of the parties. The question whether the Commissioner's report is finally acceptable or not would be decided by the Court de hors the order passed by the authorities concerned. The High Court cannot interfere with such order of the trial court appointing the commission for inspecting the site and to file report.
5. In any case, if the court has exercised the powers while appointing Local Commissioner for satisfying himself as to about the actual position at the spot, then the parties should not feel apprehended by these reports. As such, the revision against this order is discouraged. It has been observed in case Mytheen Kunju Ahammed Kunju v. P.A. Azeez Kunju A.I.R. 1994 (Ker) 287 wherein it was observed that the order appointing the commission or refusing to appoint the commission is not revisable. It was also observed by this Court in case Smt. Harvinder Kaur and Anr. v. Godha Ram and Anr. 1979 P.L.J. 562 that revision against the order refusing or appointing the Local Commissioner is not maintainable.
6. As such, the provisions of Article 227 of the Constitution of India cannot be used as a device to invoke extraordinary supervisory jurisdiction of this Court.
Resultantly, finding no merit in the petition, the same is dismissed.