IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.400/2024 Date of Decision: 07th January, 2026. Subhash .....Petitioner Versus State HP and Ors. ...Respondents Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Petitioner: Mr. N.K. Thakur, Sr. Advocate with Mr. Divya Raj Singh, Advocate. For the Respondents: Mr. Diwakar Dev Sharma, Addl. Advocate General, for respondents No.1 and 3/State. Mr. Vijay Arora, Sr. Advocate with Ms. Lalita Sharma, Advocate, for respondents No.2, 4 and 5 Bipin Chander Negi, Judge (oral). The present petition has been preferred against the impugned order dated 07.06.2024, passed by the learned Senior Civil Judge, Kullu, District Kullu, HP, whereby an application filed under Order 26 Rule CPC, filed by the present respondents/defendants No.2, 4 and 5 has been allowed. 2. Heard counsel for the parties, perused the impugned order and the documents appended along with the present petition. 3. The petitioner, in the case at hand, is the plaintiff before the learned trial Court. The suit, in the case at hand, had been filed with respect to Khasra No.153. The 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 allegation in the suit is that defendants while constructing a road on Khasra No.224 i.e. land adjacent to the suit land, were encroaching upon Khasra No.153 (suit land). Initially the learned trial Court had refused the grant of interim injunction vide order dated 07.09.2022. The aforesaid order was reversed by the learned First Appellate Court vide judgment dated 30.09.2022, holding that while constructing the path over Khasra No.224, defendants were restrained from encroaching upon the suit land i.e. Khasra No.153. 4. In the aforesaid backdrop, an application under Order 26 Rule 9 CPC, for appointment of a Local Commissioner, dated 10.04.2023, was filed by the present respondents/defendants No.2, 4 and 5 before the learned trial Court. The relevant extract of the application reads as follows:- “9. That the land over which the road/path is being constructed by the defendants has already been demarcated by the revenue agency on 06.07.2022 but the only grouse of some of the plaintiffs are that they want to demarcate the suit land.” 5. Reply thereto is in the following terms:- “12. That para No.9 of the application is not admitted to be correct. It is submitted that once the demarcation was done by revenue officials subsequent demarcation is illegal until the first demarcation is set aside by due process of law.” 3 6. From the aforesaid, it is evident that the portion whereupon the road is to be laid by the respondents/defendants No.2, 4 and 5 already stands demarcated. 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. 7. In my considered view, the aforesaid disputed question of fact (alleged encroachment) can be adjudicated upon by the Court after framing of issues and recording of evidence of the parties. For such purpose, assistance of the Commissioner is neither necessary nor justified. The object of Order 26 Rule 9 CPC is not to assist a party to collect evidence where it can get the evidence itself. The object is to elucidate any matter in dispute by local investigation at the Spot, where the Court is satisfied on materials available on record that a party is not able to produce the desired evidence for reasonable circumstances. In such a 4 situation, the Court may assist the party to appoint a Commissioner to get the evidence. 8. In the aforesaid facts and attending circumstances, the impugned order dated 07.06.2024, passed by the learned Senior Civil Judge, Kullu, District Kullu, HP, is quashed and set aside. Parties are directed to appear before the learned trial Court on 17.02.2026. Petition stands disposed of, so also the pending miscellaneous application(s), if any. (Bipin Chander Negi) Judge 07th January, 2026 (Gaurav Rawat)