2025:HHC:23851 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 278 of 2025 Decided on : 23.07.2025 Roop Singh. …Petitioner Versus Rajesh Kumar and others. …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes For the petitioner : Mr. Parveen Kumar, Advocate. For the respondents : Mr. Ajeet Pal Singh Jaswal, Advocate, for the respondents. Ajay Mohan Goel, Judge (Oral) By way of this writ petition, the petitioner has assailed the order dated 12.03.2025, passed by the learned Civil Judge, Court No.3, Hamirpur, District Hamirpur, H.P., in CMA No. 195 of 2025, titled Roop Singh Vs. Rajesh Kumar & Ors., in terms whereof an application filed by the petitioner for the appointment of a Local Commissioner to demarcate the suit property to ascertain as to whether any portion of the land of the petitioner was encroached by the respondents-defendants, 1Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:23851 stood dismissed. 2. Learned counsel for the petitioner argued that the order passed by the learned Trial Court is not sustainable for the reason that the learned Court below erred in not appreciating that as there was a boundary dispute between the parties, it was incumbent upon the learned Court below to have had appointed a Local Commissioner i.e. some Revenue Officer to have the property demarcated to ascertain the factum of encroachment, as alleged by the petitioner. He submitted that as the learned Court erred in not doing the needful, therefore, this petition be allowed, the impugned order be set aside and a direction be issued for demarcation of the property. 3. On the other hand, learned counsel for the respondents submitted that there is no infirmity in the order passed by the learned Court below. He argued that as it was the allegation of the petitioner that the respondents had encroached upon his land, onus was upon the petitioner prove his case. The petitioner failed to lead any cogent evidence to demonstrate this fact. Learned counsel also submitted that neither was there any encroachment upon the Government 3 2025:HHC:23851 land by the respondents and further, the demarcation was that carried out earlier, also demonstrated that there was no encroachment and simply because the petitioner was not satisfied by that demarcation, this does not gives him any right to time and again seek demarcation and now from the Court under Order 26, Rule 9 of the Code of Civil Procedure. He further submitted that it is settled law that the provisions of Order 26, Rule 9 of the Code of Civil Procedure cannot be used by any party as a tool to create evidence in its favour and this is exactly what has been held by the learned Court below. Accordingly, he prayed that as there is no infirmity in the order, the petition being devoid of any merit, be dismissed. 4. I have heard learned counsel for the parties and also gone through the impugned order as well as documents appended with the petition. 5. A perusal of the application filed under Order 26, Rule 9 of the Code of Civil Procedure, praying for appointment of a Revenue expert as the Local Commissioner demonstrates that it was mentioned therein that the case was to be listed for argument and that from the evidence it was clear that as there 4 2025:HHC:23851 was a boundary dispute between the parties and that the defendants had encroached upon the suit land, which was admitted by the defendant in his cross-examination, therefore, it was necessary to appoint a Revenue expert as the Local Commissioner with a direction to visit the spot and demarcate the land to find out the nature and extent of encroachment made by either of the paries. 6. Reply to the said application demonstrates that it was denied by the defendants that there was any encroachment upon the suit land by the defendants. It was further mentioned in the reply that the house of the defendants was constructed 15 to 20 years ago and the applicant-plaintiff had also admitted in his cross-examination that he had earlier got demarcation carried out but the same was not acceptable to him. It was also mentioned in the reply that there was no boundary dispute per se which was evident from the earlier demarcation that was done at the behest of the plaintiff, who was incidentally was not accepting the same to be correct demarcation. 7. A perusal of the order passed by the learned Court 5 2025:HHC:23851 dated 12.03.2025 demonstrates that the learned Court was pleased to dismiss the application by holding that the purpose of Order 26, Rule 9 of the Code of Civil Procedure was not to assist the party in collecting the evidence which the parties are supposed to collect. It held that a party cannot invoke the provisions of Order 26, Rule 9 of the Code of Civil Procedure seeking the appointment of a Commissioner for local investigation to generate evidence for itself. It further went on to hold that it was for the plaintiff to prove his case by leading positive evidence and the plaintiff was supposed to stand on his own legs. Learned Court also held that there was no material on record to show that any endeavour had been made by the plaintiff to get the land demarcated through the Revenue agency. On these basis, it held that the Court cannot be used as tool to collect evidence by the plaintiff who was earlier not vigilant of his rights. 8. The Court concurs with the findings so returned by the learned Trial Court. The provisions of Order 26, Rule 9 of the Code of Civil Procedure, inter alia, provide that in any suit in which the Court deems a local investigation to be requisite or 6 2025:HHC:23851 proper for the purpose of elucidating any matter in dispute etc., the Court may issue a commission to such person as it thinks fit, directing him to make such investigation and to report thereof to the Court. Thus it is evident from the bare provision of this Rule that the Court can order local investigation if the Court deems it proper for the purpose of elucidating any matter in a dispute. In other words, this provision cannot be invoked by either of the parties to fill the lacuna in its case. 9. The intent of the provision is to advance the cause of justice and not to assist the party in creating or generating evidence. As it is the allegation of the petitioner that the respondents have encroached upon his land, onus is upon the petitioner to prove his allegation. At the stage when the matter was being listed for hearing, the petitioner cannot be allowed to file an application as has been filed in this case under Order 26, Rule 9 of the Code of Civil Procedure, calling upon the Court to create evidence in his favour by appointing a Revenue Officer to carry out the demarcation. This is more so in the light of the fact that there is nothing on record from where it can be inferred that despite the requests made by the petitioner to the Revenue 7 2025:HHC:23851 Authorities to carry out demarcation, needful was not done by the Revenue Authorities. To the contrary, material on record suggests that there was a demarcation carried out earlier at the behest of the petitioner, but as he was not satisfied with the same, probably it did not depict that there was any encroachment by the respondents as alleged by the petitioner, he was not accepting the same. 10. Therefore, in the light of the above discussion as this Court finds no infirmity in the order impugned and further no merit in the petition, the same is dismissed. Pending miscellaneous application(s), if any also stand disposed of accordingly. (Ajay Mohan Goel) Judge July 23, 2025 (Shivank Thakur)