Decided on March 09,2006

JANAK RAJ Appellant
Rachhpal Chand Respondents


J.P.SINGH, J. - (1.) THIS revision petition is directed against order dated 10.12.2005 of learned City Judge, Jammu whereby application of the petitioner, seeking appointment of a local commissioner for ascertaining, as to whether the suit land was in front of house of Dhanna Ram or in the compound of Munshi Ram, has been rejected.
(2.) LEARNED Subordinate Judge, has disallowed the application of the petitioner on the ground that identity of the suit property was not in dispute in the suit and the only dispute between the parties was as to whether or not the sale made by defendant No. 4 is hit by Doctrine of lis pendens. Learned Judge has further held that purpose of issuance of commission is the elucidation of evidence, which the parties may produce in support of their respective stand in their pleadings.
(3.) SH . B.L Kalgotra, learned Counsel for the petitioner, submits that the learned trial court has erred in relying on order 26 of the Code of Civil Procedure to refuse appointment of a local commissioner. He refers to order 39 Rule 7 of the code of Civil Procedure, which according to the learned Counsel was the provision, which was required to be taken into consideration by the trial Court while dealing with the observation of the Court as to whether the order impugned in the appeal was 'case decided' referred to Ponnusamy pandaram v. The Salem Vaiyappamalai Jaugamar Sangani reported as : AIR1986Mad33 , to urge that the order of appointment of local commissioner is a 'case decided' and amendable to the revisional jurisdiction of the Court.;

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