2025:HHC:25305 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 568 of 2024 Decided on : 30.07.2025 Chuni Lal. …Petitioner Versus Prakash Chand. …Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes For the petitioner : M/s Neel Kamal Sharma and Shailja Kumari, Advocates. For the respondent : Mr. Vivek Thakur, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has approached the Court feeling aggrieved by the order dated 07.09.2024, passed by learned Trial Court, in terms whereof the application filed by the petitioner under Order 26, Rule 9 of the Code of Civil Procedure, for the appointment of a Local Commissioner to demarcate the suit land, has been dismissed. 2. Brief facts necessary for the adjudication of this petition are that the petitioner/plaintiff has filed a suit for 1Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:25305 permanent prohibitory injunction for restraining the defendants from raising construction over the suit property. The suit was filed in the year 2018. During the pendency of this Civil Suit, an application was filed by the petitioner for the appointment of a Local Commissioner to carry out demarcation of the suit land, copy whereof is appended with the petition as Annexure P-8. 3. A perusal of the application demonstrates that it was mentioned therein that plaintiff had filed a suit for permanent prohibitory injunction against the defendant from raising any construction over the suit land and changing the nature thereof. Counsel for defendant had given a suggestion to PW-2 that the dispute between parties could only be decided by way of a demarcation and thus as it was an admitted case of the parties that there was a boundary dispute between them, therefore, some revenue expert should be appointed as a Local Commissioner to visit the spot and find out the nature and extent of encroachment, if any, made by the defendant over the suit land. 4. The application was resisted by the defendant and in terms of the response filed to the application, it was 3 2025:HHC:25305 mentioned therein that the suit land was earlier demarcated on two occasions by Revenue Agencies and that too in Court proceedings, when no encroachment was found upon the suit land. No challenge to the said demarcation reports were made and in this backdrop there was no occasion for the appointment of any revenue expert, as was being prayed, more so, in the light of the fact that there was no question of a boundary dispute, as no encroachment was found over the suit land in the earlier demarcations. 5. In terms of the order passed by the learned Trial Court dated 07.09.2024, the application of the petitioner was rejected by assigning the following reasoning:- “5. Perusal of case file shows that the applicant has filed a suit for permanent prohibitory and vide present application, the applicant has sought appointment of a Local Commissioner to demarcate the suit land. As far as the provisions of Order 26 Rule 10 CPC are concerned, the appointment of Local Commissioner can be made if it appears to the court that the local investigation is required or is proper for the purpose of elucidating any matter in dispute between the parties completely. In other 4 2025:HHC:25305 words the purpose of Order 26 Rule 9 CPC is not to assist a party in getting the evidence which the party is supposed to collect. It is well settled law that the object of appointing a local commissioner is not to collect evidence and the purpose of Order 26 Rule 9 CPC is not to assist a party in getting the evidence which the party is supposed to present: It is further settled law that the plaintiff has to prove his case by leading positive evidence and that the case of the plaintiff should stand on his own legs. It is first the capability of the plaintiff to stand on his legs and conduct the litigation and it is only thereafter that the trial can proceed and, in case the plaintiff has no legs to stand, then the suit must be dismissed. 6. Moreover, the onus to prove his case is on the. plaintiff and further, there is nothing placed on record to show that any effort was made by the plaintiff to get the demarcation of the suit land by approaching the revenue authority after the alleged construction/encroachment was done by the defendant over the suit land. Now, by way of present application, it appears that the applicant has virtually requested the Court to collect evidence in his favour, burden of which is cast upon himself. 5 2025:HHC:25305 Therefore, considering the above-stated facts and taking into account the above discussion, a Local Commissioner cannot appointed in the present case and it is for the applicant/plaintiff to. establish his cause of action by leading independent evidence. Hence, the present application fails and the same is dismissed.” 6. Learned counsel for the petitioner vehemently argued that the order passed by the learned Trial Court is not sustainable in the eyes of law. He submitted that as it was an admitted case of the parties that there was a boundary dispute between them and further, as it was only the demarcation which could have had determined as to whether the respondent had encroached upon the suit land or not, learned Court erred in dismissing the application on the basis of the reasons assigned in the application. 7. On the other hand, learned counsel appearing for the respondent supported the order by submitting that the application was rightly rejected by the learned Court below. He submitted that as has been held by the learned Court below, it is not for the Court to create evidence in favour of the parties and further, as there was no encroachment otherwise also by 6 2025:HHC:25305 the respondent upon the suit land, the endeavour of the petitioner was only to create evidence in his favour and in this backdrop, as there is no merit in the petition, the same be dismissed. 8. I have heard learned counsel for the parties and also carefully gone through the impugned order as well as the documents appended with the petition. 9. A perusal of the record and more so the contents of the application filed by the petitioner under Order 26, Rule 9 of the Code of Civil Procedure demonstrate that the application for appointment of a Local Commissioner was filed by the petitioner purportedly on the basis of a suggestion given by the learned counsel for the defendant to PW-2. This means that in the course of leading his evidence, apparently the plaintiff had not placed any material on record to substantiate the allegation that there was any encroachment upon the suit land by the respondent. It is settled law that he who alleges, has to prove. Therefore, as it is the allegation of the plaintiff before the learned Trial Court that the respondent/defendant has encroachment upon the suit land, onus is upon the plaintiff to 7 2025:HHC:25305 prove the same. It could not be demonstrated before this Court, as was averred in the reply filed to the application by the defendant that earlier two demarcations of the suit land indeed were conducted and in terms thereof, no encroachment was there on the suit land by the respondent. 10. Further, in terms of the order passed by the learned Court below, there was nothing on record to demonstrate that during the pendency of the suit, the plaintiff had made any endeavour to get the suit land demarcated through Revenue Agencies. The findings returned to this effect also could not be demonstrated to be perverse or contrary to the record because learned counsel for the petitioner fairly submitted that the petitioner had not approached the Revenue Authority for the demarcation of the area, though he submitted that the petitioner had approached the Gram Panchayat for the said purpose. 11. In terms of the provisions of Order 26, Rule 9 of the Code of Civil Procedure, in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, the Court may issue a commission to such person as it thinks fit, directing him to 8 2025:HHC:25305 make such investigation and to report thereon to the Court. 12. Thus, for the purpose of invoking the provisions of Order 26, Rule 9 of the Code of Civil Procedure, primarily, it is where the Court deems a local investigation to be requisite or proper in the facts and circumstances of the case, needful is ordered. Thus, in terms of the statutory language of Order 26, Rule 9 of the Code of Civil Procedure, no right is conferred upon either of the parties to invoke the provision of Order 26, Rule 9 of the Code of Civil Procedure, for local investigation or appointment of a Local Commissioner to create evidence in its favour. This provision is sacrosanct and has to be invoked only when a situation, as is envisaged in the provision arises. No party at the throw of the hat can call upon the Court by filing an application under Order 26, Rule 9 of the Code of Civil Procedure, to appoint a Local Commissioner and do what otherwise the party is supposed to do. This provision can neither be invoked by a party to create evidence in its favour nor the Court has to invoke this provision to allow a party to fill lacunas in its case. 13. In this backdrop, as the findings returned by the 9 2025:HHC:25305 learned Trial Court while rejecting the application of the petitioner, are cogent findings returned in the backdrop of the case and as this Court sees no reason to interfere with the same, this petition being devoid of any merit, is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge July 30, 2025 (Shivank Thakur)