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2018 DIGILAW 1909 (HP)

Avtar Singh v. Neel Kamal

2018-11-01

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The petitioners, aggrieved by the rejection of their application for appointment of the Local Commissioner by the trial Court, have filed the instant revision petition. 2. The facts as are necessary for the adjudication of the present petition are that the petitioners/plaintiffs (hereinafter referred to as the plaintiffs) filed a suit for permanent injunction praying therein that the respondent/defendant (hereinafter referred to as the defendant) be restrained from creating any kind of hindrance, blocking the passage by raising any sort of construction over the land as detailed in the plaint. In the alternative, a decree for mandatory injunction directing the defendant to restore the suit land to its original position by demolishing any kind of structure that may be raised by the defendant illegally and forcibly during the pendency of the suit was also prayed for. 3. The defendant contested the suit by raising preliminary objections regarding maintainability, locus standi and estoppel. On merits, it was claimed that the defendant had never threatened to raise any blockage of the passage in question and, therefore, the suit should be dismissed. 4. During the pendency of the suit, the plaintiffs filed an application under Order 26 Rule 9 CPC for appointment of a Local Commissioner to find out the encroachment alleged to have been made by the defendant as shown in the site plan as ABCD. It was stated that the State/revenue officials have already initiated proceedings against the defendant under Section 163 of the H.P. Land Revenue Act to remove the encroachment over passage/suit land, but he got stayed the same by taking shelter of the pendency of the present suit. However, the application filed by the plaintiffs was rejected by the learned trial Court by according the following reasons:- "Having regard to averments made in the application in hand under Order 26 Rule 9 read with Section 151 CPC and reply preferred thereto and the fact that ejectment proceedings in respect of a part of the suit land allegedly encroached upon by defendant have already been initiated before competent authority in view of provision of Section 163 HP Land Revenue Act, I am of the considered view that evidence sought to be collected through this court could have been easily led by plaintiff if he had exercised due diligence. Moreover, the plaintiff has also produced on record documents concerning alleged encroachment over the suit land at the behest of defendant processed by the Revenue Agency and in my considered view that evidence can not be kept in abeyance by appointing revenue officer for demarcation of the suit land more so when factum of encroachment over the suit land is claimed to have been taken cognizance by the revenue officer as per own saying of the plaintiff. Moreover, the evidence adduced by the plaintiff with regard to alleged encroachment over the suit land at the behest of defendant is yet to put to judicial scrutiny and in my considered view this application in view of the averments made therein is not maintainable and is liable to be dismissed. Thus, in view of above reasons and discussion, the plaintiff has failed to make out a case for appointment of Local Commissioner for demarcation of suit land with view to detect encroachment thereon more so when the encroachment has already taken note of by the revenue agency in view of provision of Section 163 of HP Land Revenue Act. Consequently, application is dismissed being devoid of any merits. The application after due registration be tagged with the main case file. Now to come up for arguments on 06.06.2018." 5. It is vehemently argued by Shri Ajay Sharma, learned counsel for the plaintiffs that since the defendant had already got the proceedings initiated against him under Section 163 of the H.P. Land Revenue Act stayed, it was imperative that a Local Commissioner be appointed to elucidate the extent of encroachment. 6. On the other hand, Shri Tara Singh Chauhan, learned counsel for the defendant, would support the order passed by the learned trial Court by claiming that no party has a right to use the process of the Court to collect evidence which otherwise can easily be led by the parties by exercise of due diligence. 7. I have heard the learned the counsel for the parties and have gone through the records of the case. 8. Before proceeding to decide the case on merits, it is necessary to understand the scope and ambit of Rule 9 Order 26 CPC. 7. I have heard the learned the counsel for the parties and have gone through the records of the case. 8. Before proceeding to decide the case on merits, it is necessary to understand the scope and ambit of Rule 9 Order 26 CPC. This Rule contemplates that in any proceeding, in which the Court is of the opinion that local investigation is requisite or proper for the purpose of elucidating any matter in dispute it may issue a commission to such person as if thinks fit and direct him to make such investigation and to report thereon to the Court. Such report shall form part of the record. The purpose of local investigation is to ascertain, collect or elucidate facts in respect of any matter in dispute after proper scrutiny. 9. ''Elucidate'' according to Websters Dictionary means "to make light or clear, to explain, to remove obscurity from and render intelligible, to illustrate". 10. According to Chambers Dictionary, ''elucidate'' means "to make lucid or clear or to throw light upon, to illustrate, making clear, explanatory". 11. According to the Oxford Dictionary, ''elucidate'' means "to throw light on, explain" etc. 12. For the purpose of elucidating facts in respect of any matter in dispute means where the circumstances render it expedient in the interest of justice to do so, the Court has power, which is discretionary in nature, to appoint Commissioner for the purpose of ascertaining, to make it clear, intelligible and to throw light upon the matter in issue. However, an application under this rule must be made before the case is closed. The evidence so collected through the Commissioner may be used to elucidate a point which may otherwise be left in doubt or ambiguity on record. Therefore, the Commissioner in effect is a projection of the Court appointed for a particular purpose. So long as the evidence is relevant and if it is not by way of dilatory tactics, the Court may allow a party to adduce evidence. However, such evidence is not binding on the Court and the same is required to be appreciated alongwith other evidence. It needs to be clarified that it is only on examination of the Commissioner that the report submitted by him would form part of the record and evidence. Here too, the opposite party will have an opportunity to cross-examine the Commissioner. 13. It needs to be clarified that it is only on examination of the Commissioner that the report submitted by him would form part of the record and evidence. Here too, the opposite party will have an opportunity to cross-examine the Commissioner. 13. Adverting to the facts of the present case, admittedly, proceedings that were initiated against the defendant by the State, for removal of the encroachment under Section 163 of H.P. Land Revenue Act, have been got stayed only on the ground that the proceedings in civil suit are pending. Therefore, in such circumstances, the application for appointment of the Local Commissioner cannot be said to have been moved with an intention of collecting evidence. 14. Whether there is encroachment and if so, the extent thereof, can only be proved by revenue expert and, therefore, no exception to the appointment of the Local Commissioner could have been taken by the learned trial Court. It has failed to remember that the contest is always between the parties, whereas, insofar as the Courts are concerned, its quest is to ascertain the truth and strife to prevent miscarriage of justice. After all, "every trial is the voyage of discovery in which truth is the quest", which cannot be forgotten in the wake of adhering to the punctilious of Court procedure and technicalities. 15. In view of the aforesaid discussion, I find merit in this petition and the same is accordingly allowed and the order passed by the learned trial Court on 09.05.2018 is set aside. The learned trial Court is directed to appoint a Local Commissioner being a revenue expert with a direction to him to demarcate the suit land and to report "whether portion denoted with letters ABCD in red colour as shown in the site plan is part of Khasra No.741 and is encroached by the defendant, as alleged and if so to what extent?" 16. The petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.