The Himachal Pradesh High Court allowed a petition, filed under Article 227 of the Constitution of India, taking exception to the order passed by the learned Trial Court on 11.09.2023, vide which it dismissed the application for appointment of Local Commissioner filed by the petitioner/ plaintiff under Order 26 Rule 9 of the Civil Procedure Code. The Court observed that the appointment of a Local Commissioner obviously would have only facilitated the Court in elucidating the matter in dispute.
Brief Facts:
The Plaintiff/petitioner filed a suit for a permanent prohibitory and mandatory injunction on the ground that the defendant/respondent, a complete stranger to the suit land, has no right, title, and interest in it whatsoever and is a mischievous character and in the habit of interfering in the suit land just to grab the same. Along with the suit, the petitioner filed an application for an injunction, and the same was allowed in his favor and even affirmed thereafter vide order dated 18.07.2019. It was thereafter that the petitioner filed an application seeking local inspection of the spot to be conducted by the Local Commissioner on the ground that despite orders of injunction, the respondent was causing nuisance and damage as well as forcibly raising illegal construction over the suit land.
The application was dismissed on the ground that appointing the Local Commissioner at this stage would amount to permitting the petitioner to use the Court as a tool to collect evidence in his favor, whereas, it is for the petitioner to establish the encroachment by leading independent evidence. Hence, the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the reasons as assigned by the Trial Court for rejecting the application for appointment of Local Commissioner is unsustainable in the eyes of the law as the Court below has failed to take into consideration the real controversy between the parties.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that no fault can be found in the order of the Trial Court as it is more than settled that a party cannot be permitted to call upon the Court by way of appointment of a Local Commissioner to create evidence to prove its allegations.
Observations of the Court:
The Court noted that the claim of the petitioner of his being owner in possession of the suit land and the respondent being a complete stranger thereto has been conceded by the respondent. This means, the petitioner, in records, is the complete owner and in possession of the suit land and this fact has not been disputed by the respondent and, therefore, to that extent claim of the petitioner is non-contentious.
The Court observed that the Trial Court could not have rejected the application for the appointment of a Local Commissioner and make a non-contentious claim of the petitioner to be contentious. It would have been an entirely different matter where both the parties had been laying claim to the same property, but this is not the position in the instant case. Therefore, the appointment of a Local Commissioner obviously would have only facilitated the Court in elucidating the matter in dispute. Moreover, in case any party would have any objection to the report of the Local Commissioner, then obviously it always has a right to file objections.
The decision of the Court:
The Himachal Pradesh High Court, allowing the petition, held that the order passed by the learned Trial Court cannot withstand judicial scrutiny and is accordingly set aside.
Case Title: Amar Chand v Sapna Devi
Coram: Hon’ble Justice Tarlok Singh Chauhan
Case no.: CMPMO No. 640 of 2023
Advocate for the Petitioner: Mr. Vijay Chuadhary
Advocate for the Respondents: Mr. Sat Prakash
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