_____________________________________________________________ vs Dinesh Kumar & Others
2024 Latest Caselaw 15513 HP

Himachal Pradesh High Court

_____________________________________________________________ vs Dinesh Kumar & Others on 22 October, 2024

        IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                 CMPMO No. 616 of 2024
                                 Date of Decision: 22.10.2024
         _____________________________________________________________
         Ashish Kumar                                                  ...Petitioner...

                                           Versus
        Dinesh Kumar & others                                          ..Respondents...

        Coram
        Hon'ble Mr. Justice Bipin Chander Negi, Judge.
        Whether approved for reporting?1

        For the petitioner:                Ms. Meera Devi, Advocate.
        For the respondent:     Mr. Mukul Sood, Advocate.
    4._________________________________________________________
       Bipin Chander Negi, Judge (oral)

The petitioner in the case at hand is the plaintiff before the Trial

Court. The suit filed by the petitioner before the trial Court is for

possession. The petitioner is an owner in possession of the suit land

bearing Khasra No. 728/530 measuring 166-23 meters and the

respondents No. 1 & 2 are owners in possession of Khasra No. 530 of

2014 measuring 173.60 sq mtr both lands are situate at up Mohal

Chalaunthi, Tehsil & District Shimla, H.P. Admittedly both the

aforesaid lands abut each other. Petitioner filed an application under

Order 26 Rule 9 CPC for appointment of Local Commissioner to

conduct a demarcation.

2. From a perusal of the application, so filed, it is alleged that the

respondents have constructed a retaining wall and a two storey

structure without getting the land demarcated. In response thereto, the

respondents have categorically averred that prior to raising

Whether reporters of Local Papers may be allowed to see the judgment?

construction on their own land detailed supra they have got

conducted a demarcation and while conducting the demarcation the

GPA of the petitioner namely one Sh. Shashi Bhushan was also

present during the demarcation process. The aforesaid application

filed under Order 26 Rule 9 CPC was decided vide impugned order

dated 29.06.2024, whereby the application has been kept pending till

further orders.

3. I have heard learned counsel for the petitioner and perused the

record appended alongwith the present petition.

4. Taking no decision is a decision in itself. One of the purpose

envisaged for appointment of a Local Commissioner for local

investigation under order 26 Rule 9 CPC is for elucidating any matter

in dispute. The expression "elucidate" means to make lucid or clear,

throw light upon, explanation, enlighten. The demarcation report

already exists on record. No elucidation thereof is required. Hence,

there exists no basis for filing of the present application under Order

26 Rule 9 CPC at this stage.

5. In the case at hand, post passing of the impugned order dated

29.06.2024, issues have been framed on 21.09.2024. Evidence on

behalf of both the parties is yet to be recorded. The Local

Commissioner's report enables the Court to properly and correctly

assess the evidence on record and clarify the point which is of a

doubtful nature. Since, in the case at hand, evidence is yet to be

recorded, therefore, there is an infirmity in the order passed by the

learned Trial Court in postponing the adjudication of the present

application under Order 26 Rule 9 CPC. The same can be filed at an

appropriate stage if the need arises.

6. Other than the aforesaid, for issuance of a local investigation

contemplated under Order 26 Rule 9 CPC the Court must be satisfied

on material available on record that a party seeking assistance is not

able to produce the required evidence due to certain circumstances

and hence, the Court may assist the litigant by appointing a

commissioner to get such material which neither can be had from the

records nor can be produced by the parties by leading oral or

documentary evidence. Such is not the case in the proceedings at

hand.

7. Hence, for the foregoing reasons in keeping the application

pending there is a failure on the part of the Trial Court in exercising

jurisdiction vested in it. The impugned order is set aside. The

petitioner is at liberty to file an application under Order 26 Rule 9 CPC

if need arises in future. For the foregoing reasons the application kept

pending by the trial Court under Order 26 Rule 9 CPC is disposed of.

The present petition is disposed of in the aforesaid terms.

(Bipin Chander Negi) Judge

October 22, 2024.

(Nisha)