JUDGMENT :

The petitioner is a plaintiff of Suit No. 351 of 2016, Smt. Shubhra Pande Vs. Smt. Durga Pande and others, which stood instituted by her before the Court of Civil Judge (Senior Division), Dehradun, praying for the grant of decree of mandatory injunction particularly for removal of the boundaries, as well as for grant of decree of perpetual injunction. The same was contested by the defendants respondents by filing written statement, but however, during the pendency of the suit, the defendants have filed an Application under Order 26 Rule 9 of CPC, praying for appointment of a Local Commissioner in order to ascertain the measurement of passage and the boundary walls. The said application as it was preferred on 28.08.2017, which was objected by the petitioner by filing an application paper No. 71C, denying the statements, consequent to which, the learned trial Court vide its order dated 18.07.2023, rejected the application under Order 26 Rule 9 of CPC, inter alia on the ground that the parties cannot utilize the provisions as contained under Order 26 Rule 9 of CPC, to collect the evidence which may affect an adjudication of a trial on merits.

2. The matter was thereafter put