2025:JHHC:19932 --1-- C.M.P. No. 891 of 2022 IN THE HIGH COURT OF JHARKHAND, RANCHI C.M.P. No. 891 of 2022 ---- 1. Ram Pravesh Shukla, aged about 62 years, son of Late Ram Janam Shukla, resident of Village – Choura, PO – Bansdih, PS – Lesliganj, District – Palamau, Jharkhand 2. Pradeep Kumar Upadhyay @ Pradeep Upadhyay, aged about 53 years, son of Late Rajeshwar Upadhyay, resident of village – Chetma, PO and PS – Patan, District – Palamau, Jharkhand Both are residing at village – Redma Mohalla, Parshuram Nagar, Gali No.2, PO and PS – Daltonganj, District – Palamau .... Petitioners -- Versus -- Krishna Kr. Tiwari, son of Sarju Tiwary, resident of village – Redma Mohalla, Parshuram Nagar, Gali No.2, PO and PS – Daltonganj, District – Palamau .... Opposite Party ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioners :- Mr. Sanjay Kr. Tiwari, Advocate For the O.P. :- Mr. Anand Kr. Pandey, Advocate ---- 19/21.07.2025 Heard learned counsel appearing for the petitioners and learned counsel appearing for the sole opposite party. 2. This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 12.08.2022 passed by learned Civil Judge (Junior Division), Palamau at Daltonganj in Original Suit No.89 of 2018 whereby the learned Court has been pleased to allow the petition filed by the plaintiff/opposite party under Order XXVI Rule 9 of CPC. 3. Learned counsel appearing for the petitioners submits that on 20.07.2018 the plaintiff/opposite party has instituted the suit 2025:JHHC:19932 --2-- C.M.P. No. 891 of 2022 being Original Suit No.89 of 2018 inter alia seeking relief therein for declaration that the suit land is a niksar, passages, pathway and rasta of the plaintiff over which they have acquired a right of easement and the defendants have not authorized to close the same. He submits that pursuant to summons issued in the aforesaid Original Suit No.89 of 2018, the defendants/petitioners have appeared and opposed the suit by filing joint written statement dated 11.10.2018 mainly contending therein that there is no path or niksar of the plaintiff rather plaintiff has mentioned the land under the right title and possession of the defendant No.1 and his wife, who was not made party, as rasta illegal by giving imaginary map. He submits that factually there is rasta of the plaintiff in southern side which is apparent with the map annexed by the defendants in their written statement. He further submits that in the sale deed of the plaintiff rasta is also not reflected in the northern side which itself negates the claim of the plaintiff/opposite party in spite of that the learned Court on a petition filed by the plaintiff/opposite party under Order XXVI Rule 9 of the CPC has allowed the same and appointed the Advocate Commissioner which is not in accordance with law. He submits that the said order has not been passed under the parameters of Order XXVI Rule 9 of CPC. On this ground, he submits that the impugned order may kindly be set aside. 4. Learned counsel appearing for the sole opposite party opposes the prayer and submits that the learned Court has rightly 2025:JHHC:19932 --3-- C.M.P. No. 891 of 2022 passed the order and there is no illegality in the impugned order. He submits that it was the discretion of the learned Court to appoint the Pleader Commissioner under Order XXVI Rule 9 of CPC. 5. The petition filed under Order XXVI Rule 9 of CPC is annexed in Annexure – 2 of the present CMP wherein no exigency or reason has been disclosed as to why the Pleader Commissioner is required to be appointed under Order XXVI Rule 9 of CPC. The Pleader Commissioner can be appointed for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits. The circumstance of appointing Pleader Commissioner is already made under Order XXVI Rule 9 of CPC and those are not the circumstance for filing of the petition under Order XXVI Rule 9 of CPC that is reflected from the petition contained in Annexure-2 of the CPC. It is further well settled that the object of local investigation by appointing Commissioner is not to collect evidence which can be adduced in the Court. Further the said passage is being claimed on the basis of the sale deed and if that is the thing it is easy to prove by way of leading evidence as everything is disclosed in the sale deed itself. 6. From the impugned order, it transpires that the learned Court has allowed the said petition on the ground to avoid adducing of much oral evidence by consuming time of Court. 7. It is well settled that Order XXVI Rule 9 of CPC cannot be 2025:JHHC:19932 --4-- C.M.P. No. 891 of 2022 used for the purpose of collection of the evidence, it is based upon the premise that if the litigants are before the Court of law and the onus upon one or the other litigants to make out case on their own leg and there cannot be an opportunity being given by the Court to create evidence to improve the case by way of appointing the Pleader Commissioner. It is for the parties to prove their case by way of leading the evidence. 8. The impugned order has not been passed in light of the parameters of Order XXVI Rule 9 of CPC, as such the impugned order dated 12.08.2022 passed by learned Civil Judge (Junior Division), Palamau at Daltonganj in Original Suit No.89 of 2018 is hereby set aside. 9. This petition is allowed in above terms and disposed of. (Sanjay Kumar Dwivedi, J.) Sangam/