The Himachal Pradesh High Court dismissed a petition, filed under Article 227 of the Constitution of India, challenging the order passed by the Court of the learned Senior Civil Judge, vide which an application filed by the petitioner under Order 26, Rule 9 of the Code of Civil Procedure before the learned Trial Court for appointment of the Local Commissioner was dismissed.
The Court observed that when the petitioner had sought amendment in the suit on the ground that during the pendency of the suit, a certain part of the suit land stood encroached by the defendant, the petitioner cannot be permitted to call upon the Court by way of appointment of a Local Commissioner to ascertain as to whether part of the suit land stood encroached upon by the defendant or not.
Brief Facts:
The petitioner/plaintiff filed a suit against the respondent herein (defendant in the suit) for a permanent injunction to the effect that the respondent does not interfere or encroach upon or carry out any construction on the suit land by dispossessing the plaintiff forcibly. During the pendency of the suit, an application was filed by the plaintiff under Order 26, Rule 9 of the Code of Civil Procedure, in January 2019, praying for the appointment of a Local Commissioner, being a revenue expert, to visit the spot to demarcate the suit land and report whether the defendant has encroached upon the area referred to in the application or not.
This application was dismissed by the learned Trial Court vide order dated 17.04.2019, by holding that the plaintiff had filed the suit for permanent prohibitory injunction and mandatory injunction, on account of encroachment made by the defendant, which encroachment allegedly was made during the pendency of the suit. Learned Court held that the application for appointment of the Local Commissioner implied that the plaintiff was not aware of his own boundaries and rather he was dragging the Court to collect evidence on his behalf to prove that a certain portion of suit land stood encroached upon by the defendant. The plaintiff had placed reliance upon the site plan, therefore, the onus was upon him to prove the same and the provisions of Order 26, Rule 9 of the Code of Civil Procedure could not be invoked so as to involve the Court in the process. Hence, the present petition.
Observations of the Court:
The Court observed that when the petitioner had sought amendment in the suit on the ground that during the pendency of the suit, a certain part of the suit land stood encroached by the defendant, this pre-supposes that the petitioner was aware of his boundaries and only thereafter, he leveled allegations against the respondent of encroaching upon his land. In this background, the petitioner cannot be permitted to call upon the Court by way of appointment of a Local Commissioner to create evidence to prove his allegation as to whether part of the suit land mentioned in the application filed under Order 26, Rule 9 of the Code of Civil Procedure stood encroached upon by the defendant or not.
The Court said that as it was the specific allegation of the plaintiff that part of the suit land mentioned in the application was encroached by the defendant during the pendency of the suit, now to prove this fact, the petitioner/plaintiff has to stand on his own legs by adducing independent and reliable evidence and he cannot invoke the provisions of Order 26, Rule 9 of the Code of Civil Procedure and call upon the Court to generate evidence for him.
The decision of the Court:
The Himachal Pradesh High Court, dismissing the petition, held that there is no merit in the petition.
Case Title: Sanjeev Kumar v Yudhivir Singh
Coram: Hon’ble Justice Ajay Mohan Goel
Case no.: CMPMO No. 409 of 2019
Advocate for the Petitioner: Mr. Ashok Sud
Advocate for the Respondents: Mr. Sanjeev Kumar Suri
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