The plaintiff must prove allegations independently without relying on the court for evidence through a Local Commissioner under Order 26, Rule 9 CPC.

…Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?¹ Yes For the petitioner : M/s Neel Kamal Sharma and Shailja Kumari, Advocates.

For the respondent : Mr. Vivek Thakur, Advocate.

Ajay Mohan Goel, Judge (Oral By way of this petition, the petitioner has approached the Court feeling aggrieved by the order dated 07.09.2024, passed by learned Trial Court, in terms whereof the application filed by the petitioner under Order 26, Rule 9 of the Code of Civil Procedure , for the appointment of a Local Commissioner to demarcate the suit land, has been dismissed. 2. Brief facts necessary for the adjudication of this petition are that the petitioner/plaintiff has filed a suit for

1Whether reporters of the local papers may be allowed to see the judgment?

permanent prohibitory injunction for restraining the defendants from raising construction over the suit property. The suit was filed in the year 2018. During the pendency of this Civil Suit, an application was filed by the petitioner for the appointment of a Local Commissioner to carry out demarcation of the suit land, copy whereof is appended with the petition as Annexure P-8.

3. A perusal of the application demonstrates that it was mentioned therein that plaintiff had filed a suit for permanent prohibitory injunction augainst the defendant from raising any construction over othe suit land and changing the nature thereof. Counsel for dCefendant had given a suggestion to PW-2 that the dispute between parties could only be decided by way of a demarcation and thus as it was an admitted case of the parties that there was a boundary dispute between them, therefore, some revenue expert should be appointed as a Local Commissioner to visit the spot and find out the nature and extent of encroachment, if any, made by the defendant over the suit land.

4. The application was resisted by the defendant and in terms of the response filed to the application, it was mentioned therein that the suit land was earlier demarcated on two occasions by Revenue Agencies and that too in Court proceedings, when no encroachment was found upon the suit land. No challenge to the said demarcation reports were made and in this backdrop there was no occasion for the appointment of any revenue expert, as was being prayed, more so, in the light of the fact that there was no question of a boundary dispute, as no encroachment was found over the suit land in the earlier demarcationus.

5. In termos of the order passed by the learned Trial Court datedC 07.09.2024, the application of the petitioner was rejected by assigning the following reasoning:-

“5. Perusal of case file shows that the applicant has filed a suit for permanent prohibitory and vide present i application, the applicant has sought appointment of a Local Commissioner to demarcate the suit land. As far as the provisions of Order 26 Rule 10 CPC are concerned, the appointment of Local Commissioner can be made if it appears to the court that the local investigation is required or is proper for the purpose of elucidating any matter in dispute between the parties completely. In other words the purpose of Order 26 Rule 9 CPC is not to assist a party in getting the evidence which the party is supposed to collect. It is well settled law that the object of appointing a local commissioner is not to collect evidence and the purpose of Order 26 Rule 9 CPC is not to assist a party in getting the evidence which the party is supposed to present: It is further settled law that the plaintiff has to prove his case by leading positive evidence and that thte case of the plaintiff should stand on his own legs. It is first the capability of the plaintiff to stand on his legs and conduct the litigation and it is only thereafter that the trial can proceed and, in case the plaintiff