A Local Commissioner cannot be appointed to create evidence in favor of a party under Order 26 Rule 9 of the CPC.

Ajay Mohan Goel, Judge (oral):

In terms of order dated 24.05.2022 passed by the learned Trial Court, the application filed by the petitioner Under Order 26 Rule 9 the Code of Civil Procedure ( hereinafter referred to as the CPC), stands dismissed by assigning following reasons:-

“The object of local investigation under aforesaid provision is to enable the Court to

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

properly and correctly understand and assess the evidence on record but a Local Commissioner cannot be appo.inted in order to create evidence in favour of a party. In this case, the applicant has pleaded in para No.2 of his plaint that defendants have constructed a by pass road in Khasra No.1937/92 and 1939/92 in the year 2004 and nrow they intend to encroach upon Kuhasra No.1873/98 and 1874/98. The plaintiff/applicant appeared before the Court as a witness on 17.09.2014 and admitted in his cross-examination that there is a road which has been constructed by the defendants. He also admitted that some portion of road is damaged. He admitted that the road which has been constructed by the respondents is also repaired by them. He also admitted that he filed the present suit when the defendants started repairing the road. He again admitted that defendants are not constructing any new road. It is also the case of the respondents that a by pass road is already in existence at the spot which is being repaired by them.

Undoubtedly, it has come on record that the Settlement Officer has decided the matter in favour of the applicant, but an. appeal has been preferred against the order of the Settlement Officer by th e respondent No.1. If the present application is allowed, it would cause prejudice to the respondents as it would amount to creation of evidence in favourr of the applicant. The present aupplication was filed by the applicant when the matter was listed for evidence of defendants though it is the case of the applicant from the very beginning that respondents have constructed by pass road in the year 2004. The said fact has also been admitted by the applicant in his cross- examination before the Court. The burden lies on the applicant to prove that in the month of August, 2016 fresh encroachment ( if any) was done by respondents and a Local Commissioner cannot be appointed to assist the applicant in collecting evidence. In this context, I intend to place reliance on Diwakar Dutt Vs. Ranjeet Singh (1997) 1 SLJ 24, Jeet Ram Vs. Seeta Ram 2002 SLJ

1172. Accordingly, application filed by the applicant for appointment of Local Commissioner is dismissed. Be. tagged with the main case file after due completion. Let, case be listed for argum ents on 30.05.2022.”

2. Though, this order was passed on 24.05.2022, however, the same was not assailed by the petitioner immediately thereafter. Rather, the petitioner preferred an application Under Order 23 Rule 1 of the CPC, which has also been dismissed by the learned Trial Court vide order dated 24.08.2022, denying permission to the petitioner to withdraw the suit with liberty to file a fresh.

3. Having heard learned counsels for the parties and having perused the orders under challenge, this court finds no reason to interfere with the same.

4. At this stage, this Court would also like to make one observation that the petitioner would have had been well advised to assail the orders that were passed by the learned trial court dismissing the application for the appointment of Local Commissioner and withdrawal of the suit by filing separate petition.

5. Be that as it may, as the case pertains to the year 2012, this Court is proceeding to decid