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2016 DIGILAW 1923 (HP)

Ved Parkash v. Mool Raj Padha

2016-09-08

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Order passed on 4.1.2013 in an application filed under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure in Execution RBJ No. 34/07/06 by learned Civil Judge (Senior Division) Kangra at Dharamshala is under challenge in this petition on the grounds, inter alia, that since the proceedings under Order 21 Rule 11 and 32 of the Code of Civil Procedure with allegations of breach of decree by the respondent have been initiated by him, therefore, it was for him to have produced evidence to substantiate such allegations he levelled against the respondent. 2. Order dated 5.7.2004 Annexure P-1 passed in case No. 78/2003 titled Ved Prakash Vs. Mool Raj reveal that the suit filed by the petitioner herein was compromised and the parties were directed to maintain status quo qua the suit land till its partition under due process of law. The record reveal that the suit land now stands partitioned under due process of law and the parties are in possession of the land in their respective shares. 3. The petitioner, however, has initiated the proceedings (Execution RBJ No. 34/06/07) under Order 21 Rules 11 and 32 of the Code of Civil Procedure against the respondent on the ground that the path in existence and being used by him to have access to his cow shed has been blocked by the respondent by laying slate tiles and thereby trying to usurp more and more land over and above his share. The respondent, however, has denied the existence of any such path and came forward with the version that the applicant and his brother have another path to have access to their cow shed. On such pleadings of the parties learned trial Judge has framed the issues and also taken on record the evidence as produced by the parties on both sides. 4. The petitioner moved an application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure with a prayer to allow local inspection to find out the so called blockade of the path by the respondent. 5. The application was contested and resisted by the respondent. 4. The petitioner moved an application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure with a prayer to allow local inspection to find out the so called blockade of the path by the respondent. 5. The application was contested and resisted by the respondent. Learned trial Court on appreciation of the pleadings of the parties and also the evidence produced as well as taking note of the submissions made by the Pradhan, Gram Panchayat RW3 that there exit a public path which is being used by the applicant and his brother to have access to their cow sheds and also that to allow the application at a stage when both parties have led evidence would amount to collection of evidence by the court in favour of a party to the lis which is not legally permissible has dismissed the application vide order under challenge in this Court. 6. It is worth mentioning that the complaint qua violation of compromise decree passed in the suit was brought to the Court by the petitioner in the petition under Order 21 Rules 11 and 32 of the Code of Civil Procedure. It was for him to have proved the existence of the so called path and the same having been now obstructed by the respondent. He has produced the evidence. The respondent has also produced the evidence. Therefore, allowing the local inspection at this stage would amount to collect evidence by the Court which is not legally permissible. In similar set of facts and circumstances, this Court has held as follows in Liaquat Ali vs. Amir Mohammad & ors., Latest HLJ 2016 (HP) 831 has held as under:- “4. Petitioner has assailed the aforesaid order on various grounds taken in the petition. Before proceeding to the merits of the matter, it needs to be reiterated that the object of local investigation is not to collect evidence, but to obtain such material, which from its peculiar nature, can be had only at the spot. The object of order 29 Rule 9 CPC is not to assist a party to collect evidence. 5. Before proceeding to the merits of the matter, it needs to be reiterated that the object of local investigation is not to collect evidence, but to obtain such material, which from its peculiar nature, can be had only at the spot. The object of order 29 Rule 9 CPC is not to assist a party to collect evidence. 5. What is the measurement of the suit passage and whether the same has been obstructed or encroached upon are matters which were required to be proved by the petitioner by leading cogent and convincing evidence to this effect and, therefore, recourse to the appointment of Local commissioner for demarcating the suit land at this stage is impermissible as both the parties have led their evidence. Obviously the application now preferred by the petitioner is mischievous as the petitioner wants the court to collect evidence for him through the Local commissioner.” 7. It is seen that the point in issue as brought to this Court in this petition is squarely covered against the petitioner by the ratio of the judgment supra. I, therefore, find no merit in this petition and the same is accordingly dismissed. 8. Pending applications, if any, shall also stand dismissed and the interim order vacated. 9. The parties through learned Counsel representing them are directed to appear in the trial Court on 4.10.2016. The record be sent back forthwith so as to reach in the trial Court well before the date fixed. 10. With the above observations, the petition is accordingly disposed of.