The main legal point established in the judgment is that an application for appointment of a Local Commissioner under Order 26 Rule 9 of the Code of Civil Procedure must be filed in a timely manner and should be relevant to a matter in dispute involving the necessity of local investigation.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioner has challenged order dated 27.11.2018, passed by the Court of learned Senior Civil Judge, Nalagarh in Case No. 482 of 2014, titled as Pritu Vs. Babu Ram, vide which, an application filed under Order 26 Rules 9 and 10 of the Code of Civil Procedure praying for appointment of a Local Commissioner for the purpose of demarcation of the suit land has been dismissed.

2. Brief facts necessary for the adjudication of the petition are that the petitioner herein has filed a suit for declaration with consequential relief of permanent prohibitory injunction, which is pending adjudication before the learned Court below. The suit was initially instituted against the predecessor-in-interest of the present respondents.

3. It is a matter of record that after the framing of issues, respective parties led their evidence and thereafter, the matter was being taken up by the learned Court below for the purpose of hearing.

4. Learned Trial Court adjourned the case for the purpose of hearing five times. Thereafter, an application stood filed by the present petitioner under Section 26 Rule 9 of the Code of Civil Procedure praying for appointment of a Local Commissioner to demarcate the land comprised in Khasra Nos. 525/269 and 248 in Village Rampur, Tehsil Nalagarh, District Solan, H.P. The reasons mentioned in the application, inter alia, were that plaintiff had filed a suit for declaration on the basis of exchange entered into between the parties and said exchange stood denied by the defendant. Plaintiff had got the demarcation carried out somewhere in the year 2005 before the exchange took place. However, said file was not available in revenue record. According to the plaintiff, demarcation was a technical type of work, which only revenue officials could do and he being an illiterate person, could not demarcate the land himself. Therefore, he had no alternative, but to seek the assistance of the Court to have the land demarcated by way of appointment of a Local Commissioner.

5. This application was opposed by the respondents on the ground that the plaintiff had filed the application just for the purpose of collecting evidence in his favour and the same stood filed at a belated stage when five opportunities stood granted by the learned Trial Court on the request of the plaintiff to argue the case on merit. It was further the stand of the respondents before the learned Court below that though the Court had power to appoint a Local Commissioner, but the same can be done where boundary dispute existed and in the present case, there was no boundary dispute between the parties, as suit for declaration stood filed by the plaintiff on the plea of oral exchange and the application was a clever attempt made by him to collect evidence to fill up the lacuna and loopholes in his case.

6. Vide impugned order, learned Trial Court has rejected the application filed by the present petitioner, inter alia, on the ground that appointment of Local Commissioner was not required in the case keeping in view the nature of dispute between the parties and allowing the application would tantamount to collection of evidence for the applicant/plaintiff.

7. I have heard learned counsel for the parties and have also gone through the impugned order as well as the pleadings appended with petition.

8. It is not in dispute that the application under Order 26 Rule 9 of the Code of Civil Procedure was filed by the present petitioner at a belated stage after the parties had led their respective evidence and after plaintiff had availed five opportunities for addressing the Court on merit. Application under Order 26 Rule 9 of the Code of Civil Procedure for appointment of a Local Commissioner was filed on the grounds, which I have already enumerated hereinabove. A perusal of the plaint which is appended with the petition as Annexure P-1 demonstrates that the decree which has been sought by the plaintiff is a decree for declarat