Tarlok Singh Chauhan, J.

This petition under Article 227 of the Constitution of India is directed against the order, dated 17th April, 2015, passed by the learned trial Court whereby it allowed the application of the respondent and ordered appointment of Local Commissioner to demarcate the suit property.

2. The respondent filed a suit for mandatory injunction, directing the defendant to ascertain the boundaries of his land through lawful demarcation and if after demarcation some structure is found over the land of the plaintiff, the same be ordered to be demolished.

3. I wonder as to how the suit, in the first place, could be maintained. After all it is for the plaintiff to first establish his right and then seek remedy.

4. Another strange aspect of the case is that the plaintiff thereafter moved an application under Order 26 Rule 9 read with Section 151 of the Civil Procedure code for the appointment of a Local Commissioner on the ground that it is the duty of the defendantrespondent to ascertain boundaries before raising construction of his house and, therefore, the revenue department through any official of the revenue department, not below the rank of Tehsildar or Naib Tehsildar be appointed as Local Commissioner. This again was a strange prayer made by the plaintiff-respondent, who without establishing his right wanted the Court to collect evidenc e for him.

5. Interestingly, the respondent succeeded in his endeavour as the trial Court ordered the appointment of Local Commissioner and the only reason given for such appointment was that since the plaintiff-respondent had filed a suit for injunction and the Musabi provided to him was not legible, therefore, it was the duty of the petitioner herein to ascertain the boundaries before raising construction of his house.

6. I am not only surprised but rather shocked in the manner in which the case has proceeded. A party without being able to prima facie establish any right, title or interest over the property, which is in possession of the opposite party, has filed the suit and thereafter is using the Court to gather evidence in its favour so as to make out a case against the opposite party.

7. This is not at all permissible as it is more than settled that the plaintiff has to stand on his own legs and cannot take advantage of the weakness of the defendant’s case. It is first the capability of the plaintiff to stand on his legs and conduct the litigation and it is only thereafter that the trial can proceed and in case the plaintiff has no legs to stand, then the suit must be dismissed.

8. It is not only desirable, but imperative that the trial Courts take care to look into not only the frame, but maintainability of the suit or else they will continue being used for collecting evidence on behalf of the party, which is not legally permissible.

9. Having said so, the impugned order cannot be sustained and the same is accordingly set-aside. This petition is allowed in the aforesaid terms. The pending applications, if any, also stand disposed of.