The provisions of Order 26 Rule 9, CPC are not meant to be used to fill up the lacunae in a party's case.

Deepak Gupta, J.

1.This petition under Article 227 of the Constitution of India is directed against the order dated 31.8.2010 whereby the learned Trial Court rejected the application under Order 26 Rule 9, CPC filed by the plaintiff-petitioner.

2.The plaintiff filed a suit seeking a decree for permanent prohibitory injunction for restraining the defendants from interfering in the suit land and in the alternative, a suit for possession by demolition of the structure raised by the defendants was filed.

3.The case of the defendants was that they had got their land demarcated in the presence of the plaintiff and after the demarcation was conducted, they had raised the construction strictly in accordance with the demarcation reports. After the parties had led evidence and the case was fixed for rebuttal evidence of the plaintiff, the plaintiff filed an application under Order 26 Rule 9, CPC praying that a Local Commissioner be appointed to demarcate the land. This application was filed sometime in September, 2009 and it was admitted by the plaintiff that the defendants had got demarcated their land and thereafter had raised construction thereon. However, the case of the plaintiff was that the defendants had removed the Pucca Banna placed by the revenue authorities at the time of demarcation and had raised a new boundary wall and had encroached further land.

4.There is no explanation as to why the plaintiff did not complain to the Court immediately after the construction was started to be raised by the defendants allegedly in the year 2006 and why the plaintiff waited for three years to file this application when the case had become ripe for hearing. No doubt, an application can be allowed at any stage but one has to see the circumstances of each case.

5.The provisions of Order 26 Rule 9, CPC are not meant to be used to help a party to fill up the lacunae in its case. The plaintiff led evidence in the case, and if as now claimed by him, the defendants had already violated the stay order and had removed the Pucca Banna, what prevented the plaintiff to lead evidence in this regard at the relevant time and for applying for appointment of a Local Commissioner at that time. There is no explanation in the application in this regard. In case the Commissioner is appointed at this stage, it would virtually amount to denovo trial of the suit. Therefore, I find no merit in the petition which is accordingly rejected. No order as to costs.