Point of Law: Rule 9 of Order 26 of Code of Civil Procedure empowers Court to issue commission to make local investigation which may be required for purpose of elucidating any matter in dispute.

JUDGMENT :

JYOTSNA REWAL DUA, J.

1. Petitioner is the plaintiff before the learned Trial Court. The issues are yet to be framed in the civil suit instituted by him in the year 2017. An application moved by the plaintiff/petitioner under Order 26 Rule 9 of the Code of Civil Procedure (CPC) was dismissed by the learned Trial Court on 12.06.2019. This order has been assailed by the plaintiff in the instant petition.

Pursuant to order dated 26.07.2019 passed in the instant petition, further proceedings in the civil suit instituted by the plaintiff have been stayed.

2. Facts:

(i) Plaintiff instituted the civil suit against the respondents/defendants for grant of decree of permanent prohibitory injunction by restraining the defendants from encroaching upon the suit land as well as the ‘gair mumkin path’. The case set up by the plaintiff was that she and her sister were owners in possession of the land & one storey building comprised in Khata/Khatauni No. 38/89, Khasra No. 970 measuring 0-01-78 hectare situate at Mohal Tutu, Tehsil Shimla, District Shimla, H.P. There was ‘gair mumkin path’ 1 x 19 meter existing upon the land comprised in Khewat No. 38, Khasra No. 971/4 leading to the property of the plaintiff from the main road. On 03.10.2017, the plaintiff found that the defendants had encroached not only the suit land but also the path. Request made by the plaintiff to the defendants for stopping the work did not yield desired result, hence, suit was filed.

(ii) Defendants denied plaintiff’s allegations in their written statement. It was specific stand of the defendants that they were neither digging the suit land nor had they encroached upon the same. Allegation of having encroached the path was also refuted. It was submitted that the path was away from the land of the defendants and was common to be used by the plaintiff and the defendants. That there was no question of causing any damage to the said path by the defendants. Defendants further asserted that they had also filed a suit for permanent prohibitory injunction against the father of the plaintiff, which was pending adjudication before the competent authority.

(iii) Plaintiff moved an application under Order 26 Rule 9 read with Section 151 CPC with prayer to appoint the local commissioner “having technical knowledge of revenue to visit the spot of the suit property and investigate the matter and further place the spot inspection report qua encroachment, digging, destruction of the common path etc.”

In the aforesaid application, the plaintiff inter-alia pleaded that even after passing of interim injunction order in the civil suit, defendants had continued to encroach upon plaintiff’s land, consequently the plaintiff had to file an application under Order 39 Rule 2A CPC, which was pending adjudication before the learned Trial Court. That the only passage available to the plaintiff to reach her house had been damaged by the defendants and that there was no other path available to the plaintiff.

(iv) Defendants filed detailed reply to plaintiff’s application seeking appointment of local commissioner. In their reply, the defendants categorically pleaded that there was an earlier demarcation report dated 22.09.2015 of the spot. This demarcation was conducted by the revenue officials and was in favour of the defendants. The factum of this demarcation report was concealed by the plaintiff from the Court. There was no occasion for carrying out fresh demarcation/appointment of local commissioner. The defendants denied that they were digging the suit land or the path or that they had damaged the suit land or the path as alleged by the plaintiff. Defendants denied having encroached upon the suit land or the common path. It was further pleaded that the Police had also conducted demarcation of the spot. At the instance of the defendants, an FIR was registered against the father of the plaintiff under Section 451 of the Indian Penal Code. That the plaintiff and her father wanted to encroach upon