Heard learned counsel for the petitioner.
Suit was filed by the petitioner and proforma-respondent nos. 5 to 11 seeking an injunction to restrain the defendant-respondents from interfering in plot no. 118, area 0.057 hectares delineated by the letters 'A,B,C,D' in the plaint map. During the pendency of the proceedings, an application was filed by the plaintiff-petitioner for issuing a commission to prepare a survey map to specify the land in dispute. By order dated 27.8.2009 the court below rejected the said application on the ground that the plaintiff has delineated the disputed property in the plaint map, as such, the survey map is not required. The petitioner went in revision which was dismissed as not maintainable.
Prima facie, the revisional court was of the view that the order, being interlocutory in nature, was not revisable. Learned counsel for the petitioner has tried to assail the revisional order by relying upon a judgement Ghurhu Vs. X Additional District Judge, Varanasi and others, reported in 2004 (1) AWC 259, wherein it has been held that refusal to issue a commission would cause irreparable injury to the petitioner amounting to failure of justice as per clause (ii) of second proviso to Section 115 CPC. The facts of this case were entirely different inasmuch as the petitioner therein was not impleaded as the party to the suit and the commission report was obtained behind his back and without any notice or knowledge to him. He was subsequently impleaded as the party and thereafter he moved an application for issue of a second commission. In the said facts and circumstances, this court held that rejection of his application for issuance of the second commission would amount to failure of justice as it would cause irreparable injury to him.
However, the situation in the present case is entirely different inasmuch as the land in dispute is celary identifiable on the basis of the plaint map, and there is no dispute in this regard and, as such, in the opinion of this Court no illegality appears to have been committed by the courts below in rejecting the application for issuance of survey commission.
In view of the aforesaid, the impugned order does not call for any interference.
The writ petition accordingly stands dismissed.
Order Date :- 12.1.2010 sks