Order 26 Rule 9 of the CPC is intended to elucidate matters in dispute, not to assist a party in collecting evidence that can be produced through standard trial procedures such as oral or documentary evidence.

Bipin Chander Negi, Judge

(oral)

1. The present petition has been preferred against impugned order dated 30.08.2025, whereby an application filed under Order 26 rule 9 of the Civil Procedure Code read with Section 151 of the Civil Procedure Code for appointment of a Local Commissioner for demarcating the suit land filed by the present petitioner/plaintiff, has been dismissed.

2. Heard learned counsel for the petitioner, perused the impugned order and the documents appended along-with the present petition.

3. In the case at hand, the present petitioner/plaintiff has filed a suit for permanent prohibitory and mandatory injunction against the respondents. In the same, pleadings are complete and the same is fixed for settlement of the issues. It is, at this stage, that an application under Order 26 Rule 9 of the Civil Procedure Code for appointment of the Local Commissioner has been filed.

4. In the application, it has been averred that the respondents own land adjacent to the suit land. It is alleged that during the pendency of the suit, the respondents have dug up the suit land and have raised construction of a concrete pathway/road upon the suit land. Besides the aforesaid, it is also averred that pipes have been laid on the suit land during the pendency of the suit. As a consequence whereof, it is alleged that whole path has been blocked.

5. In response filed, it has been alleged that the present application is not maintainable as the suit land has already been demarcated.

6. In the aforesaid backdrop, the application filed under Order 26 Rule 9 of the Civil Procedure Code seeking appointment of the Local Commissioner has been dismissed on account of the fact that the suit is at its initial stage and parties have yet to prove their averments by leading evidence. Besides the aforesaid, the purpose of Order 26 Rule 9 of the Civil Procedure Code has also been cited as a reason for rejecting the application.

7. In my considered opinion, the object of Order 26 Rule 9 of the Civil Procedure Code is not to assist a party to collect evidence where it can get the evidence itself. The object is to elucidate any matter in dispute by local investigation at the spot, where the Court is satisfied on materials available on record that a party seeking assistance is not able to produce the required evidence due to certain circumstances and hence, the Court may assist the litigant by appointing a Commissioner to get such material which neither can be had from the records nor can be produced by the parties by leading oral or documentary evidence.

8. In view of the aforesaid, the disputed question of fact in the case at hand (alleged infraction) can be adjudicated upon by the Court after framing of issues and recording of evidence of the parties. For such purpose, assistance of the Commissioner is neither necessary nor justified at this stage.

9. For the foregoing reasons, I see no need to interfere with the well reasoned order passed by the Trial Court and hence the petition is dismissed accordingly.

Pending miscellaneous application(s), if any shall also stand disposed of.