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JYOTSNA REWAL DUA
Saroj Sharma – Appellant
Versus
Rakesh Kumar – Respondent
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:
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.
A commission under Order 26 Rule 9 CPC can only be appointed after evidence is presented by both parties in a civil suit.
Appellate court cannot entertain application under Order 26 Rule 9 for fresh demarcation to test trial court's rejection of existing defective report; sustainability of trial court's reasoning to be ....
The prime duty of the Court is to arrive at the truth of the matter and to adjudicate upon the issues brought before it in light of such truth.
The main legal point established in the judgment is that the Court has the jurisdiction to appoint a Local Commissioner for demarcation of land in a boundary dispute, and such appointment does not am....
The plaintiff must provide independent and reliable evidence to prove the encroachment and cannot invoke the provisions of Order 26, Rule 9 of the Code of Civil Procedure to generate evidence.
The onus is upon the plaintiff to prove the encroachment and produce the relevant record before the Revenue Official to enable demarcation. The Court cannot create evidence in favor of a party.
The discretionary nature of powers under Order 26 Rule 9 of CPC and the limited scope for entertaining a petition under Article 227 of the Constitution of India.
The discretion to appoint a Commissioner for spot inspection and demarcation of property under Order 26 Rule 9 of CPC lies with the Trial Court, and the nature of relief is purely discretionary.
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