2025:HHC:29757 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.66 of 2022 Decided on: 02.09.2025 Prakash Chand (deceased) through LRs. Rakesh Kumar & another … Petitioners Versus Amar Nath (deceased) through LRs. Bimla Devi & others … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 ____________________________________________________ _ For the petitioners : Mr. Naresh K. Sharma, Advocate. For the respondents : Respondents No.1 (i) and 1(ii) ex parte. Mr. Vijay Singh Bhatia, Advocate, for respondent No.2. No notice issued to proforma respondents. None for respondents No.1 (iii) and 3. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have assailed order dated 13.01.2022 (wrongly mentioned in the prayer clause as 17.02.2022), passed by learned Trial Court, in terms whereof an application filed by the petitioners under Order XXVI, Rule 9 of the Civil Procedure Code for appointment of a Local Commissioner has been dismissed. 2. Having herd learned Counsel for the parties and having perused the impugned order as well as other documents, this Court 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:29757 is of the considered view that the impugned order is not sustainable in the eyes of law. 3. A perusal of the impugned order demonstrates that grounds on which the application was filed, were not discussed at all in the impugned order by the learned Trial Court. It was more influenced of the fact that the plaintiffs had adduced only one witness in the witness box, and as plaintiffs’ evidence was closed as far back as on 16.04.2018 and the application was preferred belatedly, the same was not maintainable. Learned Court below erred in not appreciating that as the genesis of the application was that the statement made in the Court by one Mansha Ram, defendants’ witness and as this witness deposed only on 17.09.2021, therefore, it was only thereafter, the application could have been filed by the petitioners under Order XXVI, Rule 9 of the Civil Procedure Code. 4. This Court is not suggesting, as to whether or not, the Local Commissioner ought to have been appointed by the learned Trial Court on the basis of the application filed, but the averments made in the application ought to have been taken into consideration and findings should have been returned thereupon by allowing or dismissing the application. 3 2025:HHC:29757 5. Accordingly, this petition is allowed. Impugned order dated 13.01.2022 (wrongly mentioned in the prayer clause as 17.02.2022) is quashed and set as prayed for is remanded any to the learned Trial Court to decide the application filed under Order XXVI, Rule 9 of the Civil Procedure Code afresh on the basis of the evidence which are already taken on record. The parties through Counsel are directed to appear before learned Trial Court on 22.09.2025. Thereafter, a date will be given by the learned Trial Court for hearing of this application and on the said date the application will be appropriate orders be passed thereupon within a reasonable time without affording any further opportunity to the parties to made submissions on the said application. 6. The petition stands disposed of. Interim order, if any, stands vacated. Pending miscellaneous application(s), if any also stand disposed of accordingly. (Ajay Mohan Goel) Judge September 02, 2025 (Rishi)