IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO NO.456 of 2022 Decided on: 13th October, 2025 Shri Rajinder Pal …..Petitioner Versus Temple Trust Mata Chintpurni and another .....Respondents ------------------------------------------------------------------------------------- Coram Hon’ble Mr.Justice Ajay Mohan Goel, Judge Whether approved for reporting? yes For the Petitioner : Mr. Sanjeev Sood, Advocate. For the Respondents : Mr. Rajesh Kashyap, Advocate ------------------------------------------------------------------------------------ Ajay Mohan Goel, Judge (oral): In terms of order dated 24.05.2022 passed by the learned Trial Court, the application filed by the petitioner Under Order 26 Rule 9 the Code of Civil Procedure ( hereinafter referred to as the CPC), stands dismissed by assigning following reasons:- “The object of local investigation under aforesaid provision is to enable the Court to 1.Whether reporters of the local papers may be allowed to see the judgment? 2 properly and correctly understand and assess the evidence on record but a Local Commissioner cannot be appointed in order to create evidence in favour of a party. In this case, the applicant has pleaded in para No.2 of his plaint that defendants have constructed a by pass road in Khasra No.1937/92 and 1939/92 in the year 2004 and now they intend to encroach upon Khasra No.1873/98 and 1874/98. The plaintiff/applicant appeared before the Court as a witness on 17.09.2014 and admitted in his cross-examination that there is a road which has been constructed by the defendants. He also admitted that some portion of road is damaged. He admitted that the road which has been constructed by the respondents is also repaired by them. He also admitted that he filed the present suit when the defendants started repairing the road. He again admitted that defendants are not constructing any new road. It is also the case of the respondents that a by pass road is already in existence at the spot which is being repaired by them. 3 Undoubtedly, it has come on record that the Settlement Officer has decided the matter in favour of the applicant, but an appeal has been preferred against the order of the Settlement Officer by the respondent No.1. If the present application is allowed, it would cause prejudice to the respondents as it would amount to creation of evidence in favour of the applicant. The present application was filed by the applicant when the matter was listed for evidence of defendants though it is the case of the applicant from the very beginning that respondents have constructed by pass road in the year 2004. The said fact has also been admitted by the applicant in his cross- examination before the Court. The burden lies on the applicant to prove that in the month of August, 2016 fresh encroachment ( if any) was done by respondents and a Local Commissioner cannot be appointed to assist the applicant in collecting evidence. In this context, I intend to place reliance on Diwakar Dutt Vs. Ranjeet Singh (1997) 1 SLJ 24, Jeet Ram Vs. Seeta Ram 2002 SLJ 4 1172. Accordingly, application filed by the applicant for appointment of Local Commissioner is dismissed. Be tagged with the main case file after due completion. Let, case be listed for arguments on 30.05.2022.” 2. Though, this order was passed on 24.05.2022, however, the same was not assailed by the petitioner immediately thereafter. Rather, the petitioner preferred an application Under Order 23 Rule 1 of the CPC, which has also been dismissed by the learned Trial Court vide order dated 24.08.2022, denying permission to the petitioner to withdraw the suit with liberty to file a fresh. 3. Having heard learned counsels for the parties and having perused the orders under challenge, this court finds no reason to interfere with the same. 4. At this stage, this Court would also like to make one observation that the petitioner would have had been well advised to assail the orders that were passed by the learned trial court dismissing the application for the appointment of Local Commissioner and withdrawal of the suit by filing separate petition. 5 5. Be that as it may, as the case pertains to the year 2012, this Court is proceeding to decide the matter, which is pending before this Court. 6. Though, learned counsel for the petitioner has submitted that in the light of the fact that there was a boundary dispute between the parties, it was incumbent upon the learned Trial Court to have had appointed a Local Commissioner and this extremely important aspect of the matter has been ignored by the learned Court below, but, this Court does not concur with the submissions of the learned counsel. 7. As it is the allegation of the petitioner that there is encroachment/attempt to encroach upon the suit land by the respondent, the onus is upon the petitioner to prove the said encroachment. The assistance of the Court, as is envisaged under Order 26 Rule 9 of the CPC cannot be granted to the petitioner so as to create evidence in his favour. This is what has been held by the learned Trial Court while dismissing the application filed under Order 26 Rule 9 of the CPC. 8. As this Court does not find any perversity in order dated 24.05.2022 passed by the learned Court below, it is not interfering with the same. 6 9. Similarly, as far as the application filed Under Order 23, Rule 1 of the CPC is concerned, it is a matter of record that the civil suit was filed in the year 2012. The suit was dismissed on 10.12.2019 by the learned Trial Court. In appeal the judgment passed by the learned Trial court was set aside by the learned Appellate Court on the ground that the suit was decided by the learned Trial court by ignoring the factum of an application pending before it Under Order 26 Rule 9 of the CPC. It is thereafter, post remand of the case that the application filed under Order 26 Rule 9 of the CPC was heard and dismissed by the learned Trial Court in terms of order dated 24.05.2022. Thereafter, an application was filed Under Order 23 Rule 1 of the CPC which is appended with the petition as Annexure-8 in the year 2022. 10. Though, the date of filing of the application is not mentioned therein, but the stamp of Oath Commissioner demonstrates that it was filed in the somewhere in the month of July, 2022, i.e. after the dismissal of the application filed by the petitioner Under Order 26 Rule 9 of the CPC. A perusal of this application demonstrates that it stands mentioned in Para-2 thereof that the suit was pending before the Court and as there was some technical glitch while drafting the plaint, as the 7 suit should have been filed for possession along with permanent prohibitory injunction, whereas it was filed for permanent injunction along with mandatory injunction and as for this technical defect, the plaintiff was likely to be deprived of the right of ownership and, therefore, the plaintiff be allowed to withdraw the suit with liberty to file the same fresh. 11. Said application has been dismissed in terms of order dated 24.08.2022, passed by the learned Trial Court. While dismissing the application, learned Trial Court has held that though an application Under Order 23, Rule 1 of the CPC can be filed at any stage, but in the present case, the same was filed at a belated stage and the purpose of filing the same was nothing but to fill up the lacuna in the case. Learned Trial Court has also held that the suit was filed in the year 2012 and the application was filed after a decade and, that too, after the remand of the case by the learned Appellate Court. Learned Court below also held that there was no technical defect in the plaint, as was claimed by the applicant and if the application as prayed for was allowed, it would cause prejudice to the opposite party, which had been facing litigation for the last 10 years. 8 12. This Court is of the considered view that the order passed by the learned Court below calls for no interference, as the reasons mentioned therein are clearly borne out from the record. It is a matter of record that the application was filed after a decade as from the date of institution of the suit and the same is extremely cryptic as there is no mention therein as to what took the petitioner’s 10 years to realize that there was a technical defect. Not only this, this Court also concurs with the findings returned by the learned Trial Court that there indeed was no technical defect, as was mentioned in the application and lacuna, if any, cannot be allowed to be filled in by the Court by permitting withdrawal of the suit with liberty to file a fresh on the same cause Under Order 23, Rule 1 of the CPC . 13. In the light of the above observations, as this Court finds no reason to interfere with the orders impugned, the present petition is dismissed. The parties are directed to appear before the learned Trial Court on 10.11.2025. Pending miscellaneous application (s), if any, also stand disposed of. (Ajay Mohan Goel) Judge 13th October 2025 (meera)