2025:HHC:29082 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.472 of 2022 Decided on: 28.08.2025 Biasan Devi … Petitioner Versus Rajeev Kumar and another … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 ____________________________________________________ _ For the petitioner : Mr. Naveen K. Bhardwaj, Advocate. For the respondents : Mr. Rajesh Mandhotra, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has assailed the order dated 23.05.2022, passed by the learned Trial Court, in terms whereof, an application filed by the applicant under Order 26, Rule 9 of the Civil Procedure has been dismissed. 2. Learned Counsel for the petitioner argued that the impugned order is not sustainable in the eyes of law as learned Court below erred in not appreciating that when the petitioner had earlier filed an application praying for appointment of a Local Commissioner, liberty was granted at that time to the petitioner to approach the Court at the appropriate stage. Now, when the petitioner again approached the Court at the appropriate stage, her application has been dismissed in terms of the impugned order. He accordingly, prayed that the present petition be allowed and the 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:29082 impugned order be set aside and the land in issue be demarcated to ascertain as to whether the respondents have encroached upon the land of the petitioner. 3. On the other hand, learned Counsel for the respondents submitted that there is no infirmity in the impugned order. He has drawn the attention of the Court to the application filed under Order 26, Rule 9 of the Civil Procedure Code and submitted that as the allegation made therein was to the effect that during the pendency of the civil suit the defendant had carried out certain encroachments, the onus to prove this allegation was upon the plaintiff and it was not for the Court to assist the plaintiff in creation of evidence, as was the intent of the petitioner by way of filing the application under Order 26, Rule 9 of the Civil Procedure Code. Accordingly, he prays that as there is no merit in the present petition, the same be dismissed. 4. I have heard learned Counsel for the parties and have also carefully gone through the orders appended with the petition including the impugned order. 5. It is a matter of record that earlier also an application was filed by the petitioner under Order 26, Rule 9 of the Civil Procedure Code for appointment of the Local Commissioner which was dismissed by the learned Court below on 20.02.2018 by observing that as the suit was pending for recording evidence, 3 2025:HHC:29082 therefore, to substantiate its contention the plaintiff had to stand on its own legs and if the application was allowed at that stage it would to creation of evidence in favour of the plaintiff. Learned Court below thus dismissed the application, but with the observation that if during the closure of the evidence, it comes on record that there is a boundary dispute between the parties and defendants have encroached portion of the suit land then the plaintiff shall be at liberty to file a fresh application. 6. However, a perusal of the application filed under Order 26, Rule 9 of the Civil Procedure Code subsequently by the petitioner, which is on reocrd, demonstrates that this application was not filed in-consonance with the liberty granted by the learned Court in its earlier order. Here the application was filed purportedly on the ground that as during the pendency of the civil suit the defendants had encroached upon the land of the plaintiff, therefore, in order to ascertain this fact, the appointment of the Commissioner was necessary. 7. In this backdrop, if one peruses the impugned order, one finds that there is no infirmity in the same. Learned Trial Court rejected the application by holding that a Local Commissioner cannot be appointed to create evidence in favour of the party. It has also observed that in the present case, earlier the petitioner herself had refused the demarcation of the land from a Local Commissioner 4 2025:HHC:29082 when correction application was filed before the Settlement Officer. During the course of the hearing of this petition, it could not be demonstrated that these findings returned by the learned Trial Court were either perverse or not borne out from the record of the case. 8. Therefore, as it is a matter of record that earlier the petitioner herself had refused to get the land demarcated from a Local Commissioner and now a fresh application has been filed on the allegation that during the pendency of the civil suit the defendants had carried out further encroachment, but natural, this allegation has to be proved by the plaintiff and to prove this allegation, she cannot call upon the Court to appoint a Local Commissioner so as to create evidence in favour of the petitioner. 9. Thus, in light of the above observations, as this Court does not find any merit in the present petition, the same is dismissed. Interim order, if any, stands vacated. Pending miscellaneous application(s), if any also stand disposed of accordingly. (Ajay Mohan Goel) Judge August 28, 2025 (Rishi)