2025:HHC:31059 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 268 of 2025 Decided on : 10.09.2025 Amrit Ram (now deceased) through his Lrs. namely Sh. Surinder Kumar and others. …Petitioners Versus Rangil Ram …Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 For the petitioners : Mr. Sanjeev Kumar Suri, Advocate. For the respondents : Proceeded against exparte. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has assailed order dated 06.01.2025, passed Learned Senior Civil Judge, Court No.1, Amb, District Una, H.P., in CMA No. 07-VI-2025, in Civil Suit No. 78-I-2013, titled Amrit Ram Vs. Rangil Singh, in terms whereof, an application filed under Order XXVI, Rule 9 of the Civil Procedure Code (hereinafter referred to as ‘CPC), for appointment of Local Commissioner, was dismissed. 1Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:31059 2. I have heard learned counsel for the petitioner and have also perused the order under challenge. 3. It is a matter of record that the suit was filed by the petitioner against the respondent for permanent injunction for restraining the defendant from interfering in any manner with the suit land or changing the nature thereof. The suit was filed in the year 2014. Record also demonstrates that in the year 2015, an application under Order VI, Rule 17 of the CPC was filed praying for amendment in the plaint on the ground that during the pendency of the suit, the defendant had forcibly encroached upon the part of the suit land by raising a boundary wall and installing a gate. Record also demonstrates that after the evidence of the parties was recorded, the petitioner filed an application under Order XXVI, Rule 9 of the CPC praying for appointment of some Senior Revenue Officer as Commissioner to demarcate the suit land so as to determine encroachment carried out by the defendant upon the suit land. This application, which was filed in December, 2022, was dismissed by the learned Court below vide impugned order, by observing that the petitioner cannot be permitted to collect evidence 3 2025:HHC:31059 through the medium of the Court and thus fill the lacuna in his case at the stage where the plaintiff had already closed his evidence before the filing of the application. Learned Trial Court also held that the onus to prove his case was upon the plaintiff and nothing prevented the plaintiff from approaching the Revenue Authorities for the demarcation of the suit land, so as to ascertain the encroachment. Learned Court also had that the plaintiff had filed the application so as to use the Court as an instrument for collecting evidence, which is not permissible. 4. This Court is of the considered view that the findings returned by the learned Trial Court while dismissing the application, do not call for any interference. 5. In terms of the provisions of Order XXVI, Rule 9 of the CPC in any suit in which a Court deems a local investigation to be requisite or proper, inter alia, for elucidating any matter in dispute, it may issue a permission to such person as it thinks fit. Thus, the satisfaction has to be that of the Court that a Commission is required to be issued so that an investigation is carried out to elucidate any matter in dispute. This provision is not there to enable the parties to gather 4 2025:HHC:31059 evidence in their favour, though of course the provision of Order XXVI, Rule 9 of the CPC, can be put into motion by the Court upon an application filed by either of the parties. 6. Coming to the facts of this case, after leading evidence the petitioner probably realized that he had not placed enough evidence on record so as to demonstrate that there was any encroachment upon the suit land by the opposite party, therefore, said application was filed by him, so as to gather evidence in his favour. Though learned counsel for the petitioner made an endeavour to demonstrate that the petitioner had approached the Revenue Authorities also, for the demarcation of the land, however, this contention could not be proved by placing on record any application which was duly submitted by the petitioner before the Revenue Authorities, for the purpose of the demarcation of the suit land. In these circumstances, this Court is also of the considered view, as has been held by the learned Trial Court also that the provisions of Order XXVI, Rule 9 of the CPC, cannot be allowed to be used by a party, so as to collect evidence through the medium of the Court to fill the lacuna in the case. 5 2025:HHC:31059 7. In the light of above observations, as this Court finds no merit in the case, the same is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge September 10, 2025 (Shivank Thakur)