2026:HHC:25120 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 273 of 2026 Date of decision: 24.06.2026. Jyoti Kanwar ...Petitioner. Versus Manohar Lal ...Respondent. Coram: The Hon’ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?1 For the petitioner : Mr. Sangram Singh Chandel & Mr. Prikshit Rathour, Advocates. For the respondent : Mr. Jitender Pal Thakur, Advocate. Romesh Verma, Judge (Oral): The instant petition arises out of order as passed by the learned Senior Civil Judge, Solan, District Solan, H.P., dated 07.04.2026, whereby, application filed by the plaintiff/respondent under the provisions of Order 26 Rule 9 CPC came to be allowed. 2. The facts as emerge in the present case are that the plaintiff/respondent filed a suit for permanent prohibitory and mandatory injunction against the present petitioner/defendant before the learned Senior Civil Judge, Solan on the ground that he is absolute owner in possession of the land comprised in 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- khata/khatauni No. 9/9, khasra No. 608/74, measuring 6 biswas, situated in Mauza Damrog-616, Tehsil and District Solan, H.P. As per averments as made in the plaint, it has been stated that there is a path in front of his plot, which is duly depicted in the tatima. The plaintiff has constructed his house in accordance with the plan and left the requisite set-backs as required under law, towards the said path after getting demarcation on plot on 06.02.2013 and the said path has been duly mentioned on the spot map prepared by the revenue officials at the time of demarcation. 3. The defendant is owner of adjoining plot and having her house on the said plot duly mentioned as 74/4 on the spot map of the said demarcation. The said path goes through the front of house of the plaintiff and defendant and thereafter goes to further. The path is adjoining to the boundary of plots of the plaintiff and defendant and same is used not only by the plaintiff but also by other residents of the locality. The defendant by taking undue advantage of near relation with the wife of the plaintiff started raising wall of her floors so as to extend the projection in a manner to encroach upon the set- back area of the plaintiff and open area left by the plaintiff in his own land to enjoy the bigger area for which, the defendant -3- has no right, title or interest. Therefore, the plaintiff sought decree of permanent prohibitory and mandatory injunction by restraining the defendant from interfering in the path, raising construction on the said path and in the shape of overhead projection or otherwise over the said path. 4. The suit came to be contested by the petitioner/ defendant by filing comprehensive written statement. 5. The learned trial Court framed issues and directed the respective parties to adduce evidence in support of their contentions and after closure of the evidence, the case was fixed for final arguments of the main case. Noticeably, at the stage of final arguments, plaintiff/respondent filed an application under the provisions of Order 26 Rule 9 CPC for appointment of the Local Commissioner. In the said application it was averred that the petitioner/defendant is causing interference over the suit land by changing its nature by raising construction in the shape of overhead projection and on the overhead projection towards the set-back area and open land left by the plaintiff/respondent by raising brick walls with intention to block the air, light etc. and encroaching the same to meet and achieve her illegal aims. -4- 6. The application came to be resisted by the petitioner/defendant and all the averments as made in the application were refuted and denied. 6. The learned Senior Civil Judge, Solan vide its impugned order dated 07.04.2026 allowed the application, when the case was fixed for final arguments. 7. Feeling dissatisfied, the petitioner/defendant has approached this Court by filing petition under Article 227 of the Constitution of India. 8. It is contended by the learned counsel for the petitioner/defendant that the impugned order as passed by the learned Senior Civil Judge, Solan is erroneous and is liable to be quashed and set aside. He submits that the application which came to be filed by the plaintiff/respondent is an abuse of process of law as the same was filed at the stage of final arguments just to avail undue advantage. He would further submit that the plaintiff cannot be permitted to fill up lacunas after closure of the evidence at the time of final arguments. He submits that after accepting the present petition, the application filed by the plaintiff/ respondent for appointment of Local Commissioner deserves to be rejected. -5- 9. On the other hand learned counsel for the plaintiff/respondent has defended the impugned order. He submits that the order which has been passed by the learned court is well reasoned order and call for no interference in the present proceedings. 10. I have heard learned counsel for the parties and have also gone through the case file. 11. The plaintiff/respondent has approached the learned trial Court by instituting the suit for grant of decree of permanent prohibitory and mandatory injunction and the same came to be filed on 03.07.2017. The present petitioner filed written statement to the plaint on 09.08.2017. 12. It is an admitted case of the learned counsel for the parties that the issues were framed and both the parties were directed to adduce evidence in support of their respective contentions but when the case was fixed for final arguments, an application for appointment of Local Commissioner came to be filed by the plaintiff/respondent. 13. It is fairly conceded by the learned counsel for the parties that prior to institution of the present suit one similar suit was instituted by the plaintiff bearing Civil Suit No.56/1 of 2017 qua the same suit land bearing khasra No. 608/74 . The -6- said suit was also filed by the plaintiff/respondent for permanent prohibitory and mandatory injunction against the petitioner/defendant. The said suit came to be dismissed by the learned Senior Civil Judge, Solan vide judgment dated 18.11.2022. 14. The plaintiff/respondent feeling dissatisfied against the dismissal of Civil Suit No. 56/1 of 2017 preferred an appeal before the learned District Judge, Solan on 20.12.2022. The learned First Appellate Court vide its judgment and decree dated 07.04.2026 dismissed the appeal as preferred by the plaintiff/respondent. 15. Perusal of the case file reveals that the plaintiff/ respondent is trying to create evidence by filing the instant application. Even otherwise, from the perusal of the plaint and the application as filed by the plaintiff/respondent for appointment of Local Commissioner would show that the averments as made in the application are totally alien to the pleadings, which has been filed by the plaintiff/respondent. In the application, a new story has been projected by the plaintiff /respondent but surprisingly, the learned trial Court has not discussed the said fact in the impugned order and simply, it has been mentioned that no prejudice is going to be caused to -7- the defendant in case the application is allowed. Such approach as adopted by the learned trial Court is not correct. The learned trial Court ought to have taken into consideration the material placed on record including the pleadings and the reply and thereafter should have adjudicated upon the application in hand. Merely observing that no prejudice shall be caused to the defendant is not the correct approach. 16. Without touching the merits and before adjudicating anything, this Court is of the considered opinion that the impugned order as passed by the learned trial Court is not sustainable in the eyes of law as no reasoning has been assigned while allowing the said application. 17. Consequently, in view of the above observations, the petition is allowed. The impugned order dated 07.04.2026 as passed by the learned trial Court in application filed by the plaintiff/respondent under the provisions of Order 26 Rule 9 CPC is set aside. The parties are relegated to the Court of learned Senior Civil Judge, Solan. The application as filed by the plaintiff is restored to its original number. The learned trial Court is directed to decide the said application afresh by affording an opportunity of being heard to both the parties and take the application to its logical end. -8- 18. The parties are directed to appear before the learned Senior Civil Judge, Solan on 14.07.2026. 19. Before parting, it is made clear that any observation made herein-above shall not be taken as an expression of opinion on the merits of the main case and the same shall be adjudicated upon uninfluenced by any observations made here- in-above, which are only for the purpose of the instant petition. (Romesh Verma) Judge 24th June, 2026. (kck)