The Himachal Pradesh High Court dismissed a petition, filed under Article 227 of the Constitution of India, challenging the order dated 21.11.2023, passed by the Senior Civil Judge vide which he had dismissed an application filed by the petitioner under Order 26, Rule 9 of the Code of Civil Procedure for appointment of revenue officer as a Local Commissioner to demarcate the suit land has been dismissed. The Court observed that the basic and primary principle of the process of adjudication is that he who alleges has to prove and if a party that has made an allegation fails to prove its allegation on the strength of the evidence which it has led before the Court, then such a party as an afterthought cannot be permitted to invoke the provision of Order 26, Rule 9 of the Code of Civil Procedure so as to create evidence.
Brief Facts:
The suit filed by the petitioner indicates that relief is being sought for a permanent prohibitory injunction to prevent the defendant from building her newly constructed house on the suit land or covering the plaintiff's house, among other things. It has also been pleaded for a decree for mandatory injunction directing the demolition of an expanded area of the defendant's house, including the third story's beams. The suit was instituted in the year 2019 and the application under Order 26, Rule 9 of the Code of Civil Procedure was filed on 27.11.2023 at the stage when both the parties had led their evidence.
The application was rejected by the learned Trial Court by holding that a suit for injunction presupposes that the plaintiff is aware of his boundary and it is therefore that he is seeking relief to restrain the defendant from interfering in his land.
Observations of the Court:
The Court noted that the Court does not find any perversity in the findings returned by the learned Trial Court while dismissing the application of the plaintiff. Because it is the allegation of the plaintiff that the defendant has carried out construction in a manner that there are certain projections etc. over the land owned by the plaintiff, therefore, the onus to prove all these allegations is upon the plaintiff.
The Court observed that Order 26, Rule 9 of the Code of Civil Procedure cannot be allowed to be abused by a party to create evidence in his/her favour and this provision can be invoked only if the ingredients of Rule 9 of Order 26 of the Code of Civil Procedure are satisfied, i.e. inter alia, the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute. This provision per se cannot be construed as if same enshrines a right upon the party to have a Local Commissioner appointed so that evidence can be collected through the medium of the Court to ascertain whether the allegation of the concerned party is correct or not.
The Court said that the basic and primary principle of the process of adjudication is that he who alleges has to prove and if a party that has made an allegation fails to prove its allegation on the strength of the evidence which it has led before the Court, then such a party as an afterthought cannot be permitted to invoke the provision of Order 26, Rule 9 of the Code of Civil Procedure to create evidence.
The decision of the Court:
The Himachal Pradesh High Court, dismissing the petition, held that the Court does not find any infirmity in the impugned order.
Case Title: Jaswant Singh v Meera Devi
Coram: Hon’ble Justice Ajay Mohan Goel
Case no.: CMPMO No.675 of 2023
Advocate for the Petitioner: Mr. Umesh Kanwar
Advocate for the Respondents: None
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