IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No.17 of 2025 Decided on: 27.08.2025 ____________________________________________________ Savita Rani (deceased) through LRs ……….. petitioners Versus Kishori Lal ……….respondent ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the petitioner : Mr. Surender K. Sharma, Advocate. For the respondents : Mr. N.K. Thakur Sr. Advocate, with Mr. Divya Raj Singh and Ms. Gayatri, Advocates. ____________________________________________________ Bipin Chander Negi, Judge (oral) The present petition has been preferred against the impugned order dated 7.12.2024, whereby an application filed under order 26 Rule 9 CPC by the present respondent i.e. defendant before the Trial Court has been allowed. 2. Heard counsel for the parties. Perused the impugned order and the documents appended alongwith the present petition. 3. Admittedly in the case at hand, the amended suit was filed by the present petitioner on 27.11.2021. To the amended suit so filed, a written statement and counter claim was filed by the present respondent. In the counter claim so filed, relief 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 with respect to Khasra Nos. 1236/1209/863 was claimed by the present respondent. It was averred in the written statement-cum- counter claim filed that the present petitioner had encroached upon the aforesaid Khasra numbers. Therefore, relief of possession was also being sought in the counter claim filed. In response thereto are the averments pertaining to the aforesaid Khasra Nos, they were categorically denied by the present petitioner. 4. In the aforesaid backdrop, an application under Order 26 Rule 9 CPC was filed by the present respondent, wherein it was categorically averred that the dispute inter se the parties is a boundary dispute and hence demarcation with respect to Khasra Nos. 1235/1209/863 be got conducted. 5. The trial Court believing the averments made by the respondent in their application under Order 26 Rule 9 CPC and the fact that no harm would be caused to either the parties allowed the application for appointment of a Local Commissioner. Further in the impugned order by making a cursory reference to the rules and orders of the Hon’ble High Court, the Trial Court took a view that normally under Order 26 Rule 9 CPC, a Local Commissioner should be appointed where-ever required. 6. In the case at hand, the respondent has filed a written statement-cum-counter claim. Response thereto, has been filed by the present petitioner. Khasra Nos. 1235/1209/863 3 is one of the bone of contention inter se the parties. In the counter claim, it is alleged that the present petitioner has encroached thereupon, a fact vehemently denied by the present petitioner. 7. In my considered view, the aforesaid disputed question of fact 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 such a situation, the Court may assist the party to appoint a Commissioner to get the evidence. 8. For the aforesaid reasons, present petition is allowed. Impugned order dated 7.12.2024 is quashed and set aside. Pending miscellaneous application(s), if any, shall also stand disposed of. Parties are directed to appear before the trial Court on 16th September, 2025. (Bipin Chander Negi) Judge August 27, 2025 tarun