IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.806 of 2025 Decided on 02nd January 2026 Sunder Singh …Petitioner Versus Baru Ram and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? For the petitioner: Mr. Ganesh Barowalia, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has prayed for the following reliefs:- (a) “Issue an appropriate writ, order or direction under Article 227 of the Constitution of India, calling for the records of the case and quashing and setting aside the impugned order dated 14.11.2025 passed by the Learned Civil Judge (Junior Division), Shillai, District Sirmaur (H.P.), whereby the application filed by the Petitioners under Order 26 Rule 9 read with Section 151 CPC seeking appointment of a Local Commissioner has been dismissed; (b) Direct the Learned Trial Court to appoint an independent and impartial Local Commissioner, preferably a retired Revenue Officer not connected with the local administration, for conducting a fresh, lawful, and scientific demarcation of the suit land comprised in Khata/Khatauni No. 144/360, Khasra No. 6201/6022/1877 measuring 00-19-00 bigha, situated in Mouja Shillai, Tehsil Shillai, District 2 Sirmaur (H.P.), strictly in accordance with law, after associating all the parties and by drawing demarcation from pucca points; (c) Direct that the demarcation report submitted by the Local Commissioner be taken on record and considered by the Learned Trial Court for the purposes of effective enforcement of the ad-interim injunction order dated 17.05.2022 and for adjudication of pending proceedings, including the application under Order 39 Rule 2A CPC; (d) Pending the final disposal of the present petition, restrain the respondents No. 1 to 5 from carrying out any further construction, excavation, or interference of any nature whatsoever over the suit land, in violation of the injunction order dated 17.05.2022.” 2. Petitioner is one of the plaintiffs and other plaintiffs have not chosen to assail the impugned order. The petitioner is aggrieved by order dated 14.11.2025, passed by the learned Trial Court, in terms whereof, the application filed by the petitioner under Order 26, Rule 9 of the Civil Procedure Code for the appointment of a Local Commissioner has been dismissed. 3. Having heard Mr. Ganesh Barowalia, learned counsel for the petitioner and having perused the impugned order as well as the other documents appended with this petition, this Court does not finds any infirmity in the order under challenge. 3 4. The application filed under Order 26 Rule 9 of the Civil Procedure Code is appended with the petition as Annexure P-3. The relevant portion of this application is quoted hereinbelow:- “That vide order dated-17-05-2022 this Id. Court was pleased to pass an injunctory order in application no CMA 66/2021 against the respondents/defendants directing them to maintain status quo qua interfering, trespassing and encroaching the suit land till the disposal of the suit. That despite the injunctry order dated 17-05- 2022 the respondents/ defendants are disobeying and violating the same and doing construction work on a good portion of the suit land. The applicants approached the police to get the order supra implemented and stop the constriction work but the police connived with the respondent. It is submitted that the settlement work in the area is also in progress but the revenue officials of the settlement department are also in league with the defendants who happened to be financially strong and influential. Thus it is necessary and expedient that the demarcation of the suit land be ordered to be carried out by some local commissioner and may be some retired Rag revenue officer. In case some retired impartial revenue officer is appointed as local commissioner for demarcation of the suit land then it would be the interest of justice and shall help this Id. Court in imparting complete justice to the parties to the suit in such a case the defendants/ respondents shall not suffer any prejudice.” 5. The order that has been passed by the learned Trial Court, dismissing the application, reads as under:- “I have heard the parties and gone through records carefully. Perusal of the record transpired 4 that vide order dated 17.05.2022 the parties were directed to maintain status quo qua the interference, trespassing and encroaching upon the suit land bearing Khata Khatauni No.144/360, Khasra No.6201/6022/1877 measuring 00-19-00 bighas at Moja Shillai, Tehsil Shillai, District Sirmaur HP. The averments of the applicant is that the respondents are interfering in the above said land and on the other hand the respondents are claiming that they are raising construction over khasra No.6429/6020/5230/1877. For assistance, police report was called for and police was directed to take the help of competent revenue official for the identification of the land. The police report has been filed and is placed on record and perusal of the same transpired that the construction on the spot is being carried out on Khasra No. 6429/6020/5230/1877 and the owner of the suit land as per revenue record is Baru Ram that is the respondent. No any objection was filed to the said report. Moreover, the report has been prepared by the revenue official by visiting the spot along with police officials in compliance of direction of this court. Apart from that the applicant has an alternative remedy u/o 39 rule 2 A CPC which also attracts punitive action. Accordingly, in view of the facts and circumstances and the discussion made above, the present application for police help is dismissed. Application stands disposed of. After due completion it be tagged with the record.” 6. This Court concurs with the findings returned by the learned Trial Court that the provisions of Order 26 Rule 9 of the Civil Procedure Code cannot be invoked to create evidence in favour of a party, as was the intent of the present petitioner by way of filing the application. It is settled principal of law that he who alleges has to prove. Because, it is the 5 allegation of the petitioner-plaintiff that the defendants were digging, interfering and filling the foundation etc., with a view to raise pacca construction on the suit land, the onus is upon the plaintiff to prove these allegations and the Court is not to be used as a tool to create any evidence to prove these aspects of the matter. 7. Besides this, I have already quoted the relevant portion of the application filed under Order 26 Rule 9 of the Civil Procedure Code and there is not even a murmer therein that immediately before the filing of the application, any interference was being done by the defendants upon the suit land. One more thing, which this Court wants to highlight, is that as already observed hereinabove, it was not the allegation of the petitioner that the digging etc., or filling the foundation to raise pucca construction on the suit land was an act, immediately preceding the filing of the application under Order 26 Rule 9 of the Civil Procedure Code and as observed by the learned Trial also, as the application was filed after the statements of the witnesses of plaintiff/petitioner stood recorded and when the evidence of the defendants was underway, obviously, the filing 6 of the application was just an attempt to fill up the lacuna, as probably the plaintiffs were not able to substantiate the allegations of interference etc., on the strength of the evidence led by them. 8. Accordingly, in light of the above observations, as this Court does not finds any merit in the present petition, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge January 02, 2026 (Vinod)