( 2026:HHC:30068 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OMP No.210 of 2019 in Civil Suit No.57 of 2015 Reserved on:- 25.05.2026 Uploaded on:- 21.07.2026 Date of Decision: 21.07.2026 Anup Chandra Sud …Plaintiff/Non-Applicant Versus Yatish Chandra Sud & Ors. …..Defendants/Applicants Coram: The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the plaintiff : Mr. V.S. Chauhan, Senior Advocate, assisted by Ms. Preeti Steta, Advocate. For the defendants : Mr. N.K. Sood, Senior Advocate, with Mr. Aman Sood and Mr. Vivek Thakur, Advocates, for defendants No.1 to 5. Mr. Ankush Dass Sood, Senior Advocate, assisted by Mr. Gaurav Chaudhary, Advocate, for defendant No.6. Mr. Suneet Goel, Senior Advocate, assisted by Mr. Vivek Negi, Advocate, for proposed legal representatives of defendant No.7. Virender Singh, Judge The above titled application, has been moved by applicant/defendant No.1-Yatish Chandra Sud, in the above titled civil suit. 1 Whether reporters of Local Papers may be allowed to see the judgment? ( 2026:HHC:30068 ) 2. By way of the present application, which has been filed under Order 26, Rule 10 of CPC, read with Section 151 of CPC, a prayer has been made to appoint the Local Commissioner, to verify and ascertain the facts, mentioned in OMP No.569 of 2018, in Civil Suit No.57 of 2015 and to report about the factual position with regard to the closure of the passage and locking of the gate of the applicant, in disregard to the orders of the Court and for opening of the lock of the jali gate. 3. Civil Suit No.57 of 2015, has been filed by the plaintiff/non-applicant-Anup Chandra Sud, for partition of the land, measuring 9708.40 Sq. meters, bearing Khewat/Khatauni No.8/8, Khasra Nos.567, 570, 571, 1214/572, 573, 594, 595, 598, 1218/617, 711/1, 943, 946 to 964, 968, 975 to 996, 998 to 1004 and 1008, Kite-61, situated in Upmohal upper Kaithu, Station Ward Bada Shimla, Tehsil Shimla, (Urban) District Shimla, H.P. (hereinafter to be referred as the ‘suit land’), along with the buildings, structures and orchard standing thereupon. 4. In the said civil suit, applicant has filed OMP No.446 of 2018, under Order 39, Rule 4, read with Section 151 of CPC, for modification of order dated 23.11.2015, ( 2026:HHC:30068 ) which has been affirmed on 22.03.2017, for permission to carry out the repairs and renovation works. 5. In addition to this, applicant-Yatish Chandra Sud has also filed application (OMP No.569 of 2018), under Order 39, Rule 2(a) of CPC, against the plaintiff for allegedly willfully disobeying the orders of the Court, dated 22.03.2017. 6. It has been pleaded in the said application that on 16.10.2018, when, the applicant has deployed Raj Kumar, Plumber to repair the pipe of the first floor of the residential house, then, non-applicant-plaintiff-Anup Chandra Sud, his son Dhruv Sud and his wife Sheweat Sud, obstructed them from using the same. Not only this, the workers of the applicant had to bring some articles from the godown of the applicant, by using common passage, however, plumber of the applicant was stopped by Dhruv Sud, Anup Chandra Sud and his wife. Thereafter, Raj Kumar had called his co-worker Babu Ram to help him, however, in that process, they have been manhandled, abused and beaten and were not permitted to repair the pipe and to bring the material from the godown of the applicant. The only access to godown from the shutter gate has now been blocked. They have ( 2026:HHC:30068 ) forcibly locked the shutter gate from outside. The two wheelers of the applicant were parked there and he could not take them out, as the only access to the said godown has been blocked by the plaintiff/non-applicant. When, the applicant prevented the wife of the plaintiff to put the lock, he had received injuries, on account of the acts of Sheweta Sud and her son Dhruv Sud. The plaintiff/non-applicant along with his wife and her son had abused him and also manhandled the applicant and his workers. The matter was reported to the police. The act of the plaintiff/non-applicant is stated to be the willful violation of the order dated 22.03.2017, as he has flouted the status quo order. The applicant has also relied upon the photographs clicked on the spot. The video clip was also recorded, by him regarding the incident, which had taken place on 16.10.2018. 7. On the basis of the above facts, by way of the application under consideration, a prayer has been made to appoint the Local Commissioner, so that the factual/actual position, of the spot could be brought on record. The prayer, as made, in the application, is reproduced, as under:- “It is therefore, prayed that the application deserves to be allowed and may be allowed in the interest of justice and the local commissioner be appointed for verifying and ascertaining the facts in OMP No.569 of ( 2026:HHC:30068 ) 2018, as also OMP No.446 of 2018 in Civil Suit No.57 of 2015 Anup Chandra versus Yatish Chandra and in the interim the locks from the jali gate also directed to be opened. Such other orders which this Hon’ble Court may deems fit and proper in the facts and circumstances of the case, may also be passed in favour of the application.” 8. This application has been contested by the plaintiff/non-applicant, by filing reply, in which, he has taken the preliminary objection that the application is not maintainable. On merits, the application has been contested, on the ground that the applicant/defendant No.1, himself is guilty of various acts and intentionally violating the order dated 22.03.2017, passed by this Court. 9. According to the non-applicant/plaintiff, applicant/defendant No.1, has raised unauthorized and illegal construction in designated green area of the suit property. The said act is stated to be violation of the directions of this Court, as well as, the violation of the National Green Tribunal’s ban on any construction, in the city’s core area. 10. The present application is stated to be filed in order to protract the litigation. The application is stated to be counter blast to the orders passed in OMP(M) No.8 of 2018. ( 2026:HHC:30068 ) 11. It is the specific case of the non-applicant/plaintiff that the access to store and open space is from his living quarter. The very genesis of the incident dated 16.08.2018 has been denied. Suit property is stated to be joint between all the co-sharers. 12. On the basis of the above facts, a prayer has been made to dismiss the application. 13. Almost on the similar lines, application has been contested, by respondent/defendant No.7, however, it has been pointed out that the case is now listed for cross examination of plaintiff and application is stated to be delaying the proceedings. 14. According to defendant No.7, the prayer of the applicant cannot be accepted, as the same amounts to collecting the evidence for defendant No.1/applicant, which according to him, is not permissible under the law. 15. The other contents of the application have also been controverted/contested. 16. The applicant has filed rejoinder, denying the preliminary objections, as taken in the reply, as well as, contents of the reply, by virtue of which, the application has been contested. ( 2026:HHC:30068 ) 17. The issues, in this case, were framed way back on 14.07.2017 and the present application has been filed in the year 2019. 18. By way of the present application, which has been filed, under Order 26, Rule 9 of CPC, a prayer has been made to appoint the Local Commissioner, to verify and ascertain the factual position, as mentioned, in OMP Nos.569 and 446 of 2018. 19. OMP No.446 of 2018 has been moved, by applicant-Yatish Chandra Sud, under Order 39, Rule 4 of CPC, for modification of order dated 23.11.2015 and seeking permission to carry out repairs and renovation work in the premises Mythe Estate. Whereas, OMP No.569 of 2018 has been filed, by defendant No.1-Yatish Chandra Sud, under Order 39, Rule 2A of the CPC, for taking action against the non-applicants for willfully disobeying the order of the Court, dated 22.03.2007. 20. Learned Counsel appearing for the applicant could not satisfy the judicial conscience of this Court, as to how the prayer, as made, in the application can be allowed, which is nothing, but, futile attempt of the applicant to create evidence in his favour. ( 2026:HHC:30068 ) 21. In the application, bearing OMP No.569 of 2018, it is for the applicant to prove the willful violation and by way of OMP No.446 of 2018, he has sought the modification of the order passed by this Court. 22. The Local Commissioner can only be appointed, where, the Court finds difficulty in appreciating the evidence, so adduced, by the party. In other words, a thing, which can be brought on record, by the parties to the lis, by adducing the evidence, the said duty cannot be delegated to the Local Commissioner. It seems that the applicant is trying to use the provisions of Order 26, Rule 9 of CPC, as panacea to his inability to prove the facts, as alleged, in two applications, which, he cannot be permitted to do so. 23. As per the provisions of Order 26, Rule 9 of CPC, in any suit, in which the Court, deems a local investigation to be requisite or proper for the purposes of elucidating any matter in dispute, then, the Court may issue a commission, as it think fit, directing him to such investigation and to report thereon, to the Court. 24. From the facts and circumstances of the present case, as discussed above, this Court is unable to record the ( 2026:HHC:30068 ) satisfaction, as to whether, local investigation for the purpose of elucidating any matter, in dispute is necessary. 25. Moreover, considering the prayer, as made, in the application, the onus, to prove his case, which is upon the applicant, cannot be shifted upon the Court, by appointing the Local Commissioner, under the provisions of Order 26, Rule 9 of CPC. 26. Considering all these facts, there is no occasion for this Court to accept the prayer, as made, in the application. Consequently, the application under consideration is dismissed. (Virender Singh) Judge July 21, 2026 (subhash)