IMPORTANT POINT
The onus to prove the case lies on the plaintiff, and the purpose of Order XXVI, Rule 9 of the Civil Procedure Code is not to assist either party to collect evidence in its support, but to elucidate a fact if the Court is of the view that elucidation of said fact cannot be done except by exercising the powers conferred upon it under Order XXVI, Rule 9 of the Civil Procedure Code.

1. By way of this petition the petitioner has challenged order dated 21.03.2022, passed by the Court of learned Civil Judge, Court No. 3, Mandi, District Mandi, H.P. in C.M.A. No. 441 of 2022, in Civil Suit No. 163/2020, in terms whereof, an application filed by the present petitioner under Order XXVI, Rule 9 of the Civil Procedure Code has been rejected by the learned Court below. The petitioner herein happens to be the plaintiff before learned Trial Court, who alleges interference by the respondents/defendants upon the suit land which happens to be the Abadi Deh land.

2. Learned counsel for the petitioner has submitted that the impugned order is not sustainable in the eyes of law as while passing the said order, learned Court below erred in not appreciating that the land was Abadi Deh, therefore, the Revenue Authorities were not competent to grant demarcation thereupon and it was only the Court which could have ordered the demarcation. Accordingly, he prays that the petition be allowed and the impugned order be set aside.

3. Opposing the petition, learned counsel for the respondents has submitted that a perusal of the order passed by learned Court below would demonstrate that what weighed with the Court was the fact that the application was filed even before the framing of the issues and as learned Court below was of the considered view and rightly so, that the stage was not ripe so as to either entertain or pass an order on an application filed under Order XXVI, Rule 9 of the Civil Procedure Code, therefore, it rightly dismissed the application. Accordingly, he has prayed that the present petition being devoid of any merit be dismissed.

4. I have heard learned counsel for the parties and have carefully gone through the impugned order.

5. It is not in dispute that the suit land is Abadi Deh. It is also not in dispute that the application under Order XXVI, Rule 9 of the Civil Procedure Code was filed by the petitioner before learned Trial Court before framing of the issues. In terms of the impugned order, the application has been dismissed by observing that the allegation of interference alleged by the plaintiff was denied by the defendants and the stand of the defendants was that they alongwith other villagers were in possession of the Abadi Deh land. Learned Trial Court held that the case was at the stage of framing of issues and Order XXVI, Rule 9 of the Civil Procedure Code provided for appointment of a Local Commissioner to make investigation in order to elucidate the matter in dispute. But there was a clear cut distinction between elucidating the matter in dispute and collecting the evidence in support of pleadings of a party. It further held that the onus to prove the case lies on the plaintiff, who had to show not only interference on the part of the defendants in order to claim the relief, but also his locus and same could not be delegated, considering the stage of the main suit. By assigning these reasons the application was dismissed.

6. This Court concurs with the findings returned by learned Trial Court. This Court is also of the considered view that as it is the allegation of the plaintiff that the defendants are interfering with the suit land, the onus squarely lies with the plaintiff to prove this fact. The purpose of Order XXVI, Rule 9 of the Civil Procedure Code is not to assist either of the parties to the lis to collect evidence in its support. It it is to elucidate a fact if the Court is of the view that elucidation of said fact cannot be done except by exercising the powers conferred upon it under Order XXVI, Rule 9 of the Civil Procedure Code.

7. Herein, the stage at which the application was filed was before the framing of the issues and but natural the case was at a nascent stage an initial onus to prove the allegations necessarily falls upon the plaintiff. Therefore, this Court does not finds any infirmity in the findings that have been returned by learned Trial Court while dismissing the application file