IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 283 of 2021 Decided on: 01.09.2025 ____________________________________________________ Raj Kumar ……….. Petitioner Versus Manohar Lal ……….Respondent ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the Petitioner : Mr. Ishan Sharma, Advocate. For the Respondent : Mr.Vinod Kumar Thakur, Advocate. ____________________________________________________ Bipin Chander Negi, Judge ( oral) The present petition has been preferred against the impugned order dated 31.08.2021, passed by learned Civil Judge Court No. II, Hamirpur, District Hamirpur, H.P., in CMA No. 173 of 2019, RBT-184 of 2019, filed in Execution Petition No. 08 of 2014, titled Raj Kumar Vs. Manohar Lal, whereby an application filed under order 26 Rule 9 CPC for appointment of Local Commissioner moved by the present petitioner has been dismissed by the Trial Court. 2. Heard counsel for the parties. Perused the impugned order and the documents appended alongwith the present petition. 1 Whether the reporters of the local papers may be allowed to see the judgment? 3. The suit, in the case at hand, filed by the present petitioner bearing No. 12 of 2004, titled Raj Kumar Vs. Manohar Lal had been decreed on 14.02.2007. In the aforesaid backdrop, an Execution Petition under Order 21 Rule 32 of CPC was preferred by the present petitioner alleging that the respondent was encroaching upon the lands owned by the present petitioner qua which the respondent had no right in view of judgment and decree dated 14.02.2007. 4. Admittedly, both the parties had led their evidence when the application under Order 26 Rule 9 of CPC was filed by the present petitioner. The learned trial Court was of the view that it is the duty of the petitioner/decree holder to prove his case by standing his own legs and in the said endeavor the Court cannot collect evidence for the petitioner/decree holder. 5. 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 2 such a situation, the Court may assist the party to appoint a Commissioner to get the evidence. 6. In view of the aforesaid, impugned order dated 31.08.2021 is quashed and set aside. Parties are relegated to the trial Court. The application preferred under Order 26 Rule 9 for appointment of Local Commissioner by the present petitioner shall be considered by the trial Court in light of the evidence led by both the parties and, if the trial Court is of the view that in order to elucidate any matter in dispute by local investigation at the spot, materials available on record are not sufficient and that the present petitioner was unable to produce the desired evidence for reasonable circumstances, it is only then that the Local Commissioner would be appointed, in the case at hand to enable the petitioner to get the evidence. Pending miscellaneous application(s), if any, shall also stand disposed of. Parties are directed to appear before the trial Court on 24th September, 2025. (Bipin Chander Negi) Judge September 01,2025 (Shamsh Tabrez) 3