IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.106 of 2025 Decided on 07th August, 2025 Sh. Banka Ram …Petitioner Versus Sh. Madan Lal and others …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? For the petitioner: Mr. Ashwani Sharma, Senior Advocate, with Mr. Ishan Sharma, Advocate. For the respondents: Ex parte. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has prayed for the following relief:- “It is, therefore, most respectfully prayed that this petition may kindly be allowed and the impugned order dated 01.02.2025 passed by Ld. Civil Judge, Court No. IV, Hamirpur, Distt. Hamirpur H.P. In C.M.A. Regd. No. 2098/2024, (in Civil Suit No. 401/2017) titled Banka Ram V Madan Lal & others whereby application moved by the plaintiff/petitioner under Order XXVI Rule 9 CPC for appointment of local commissioner to demarcate the land is dispute comprising Khata No. 12 Min, Khatoni No. 12 Min, 2 Khasra No. 243, area measuring 00-05-40 Hects and the land in Khasra No. 355/236 area measuring 00- 01-06 Hects, situated In Village Ubak, Mouza Kuthera, Tehsil & Distt. Hamirpur (HP), may kindly be set aside and some competent revenue officer may be appointed to demarcate the lands detail above owned by both the parties and to report regarding the extent and nature of encroachment made by the defendants/respondents and as a consequence thereof, the application move by the plaintiff/petitioner under Order XXVI Rule 9 CPC may be allowed on such terms as may be deemed just and proper and justice be done.” 2. In terms of the impugned order, an application filed by the petitioner under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure has been rejected by the learned Court below. 3. Learned Senior Counsel has referred of the impugned order and has stated that in the circumstances involved in the petition, wherein, the other party had given no objection in the reply to demarcation of the disputed area, the rejection of the application was totally uncalled for. 4. I have heard learned Senior Counsel for the petitioner and have also gone through the impugned order. 3 5. The application filed by the petitioner under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure is appended with the petition so is the reply. A perusal of the reply demonstrates that in Para-3 thereof the non-applicants had stated that they had no objection if Local Commissioner is appointed by the Court and the land of the respondent alongwith the suit land is demarcated. 6. In the light of the said stand of the non-applicants, this Court is of the considered view that it would have been in the interest of justice, if the learned Court below had allowed the application, because, when both the parties were consenting to the appointment of a Local Commissioner, appointment thereof by the Court would not have amounted to passing of an order creating evidence in favour of one of the parties which has to be avoided while exercising power under Order XXVI Rule 9 of the Code of Civil Procedure. 7. Accordingly, in the light of the observation made hereinabove, this petition is allowed. Order dated 01.02.2025 is set aside. The application filed by the petitioner under order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure is 4 allowed and it is directed that the Tehsildar concerned shall carry out the demarcation in terms of the prayer made in the application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure by following the procedure and by associating the parties. (Ajay Mohan Goel) Judge August 07, 2025 (Vinod)