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2018 DIGILAW 609 (HP)

Prem Dutt v. State Of Himachal Pradesh

2018-04-11

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J —By way of this petition filed under Article 227 of the Constitution of India, the petitioner has assailed order dated 07.09.2017, passed by the Court of learned Civil Judge, Court No. IV, Una, vide which, an application filed by the petitioner-plaintiff under Order 26 Rule 9 of the Code of Civil Procedure has been dismissed. 2. Facts as they emerge from the pleadings on record are that the present petitioner-plaintiff has filed a suit praying for mandatory injunction against the respondents-defendants, i.e., the State of Himachal Pradesh for directing them to remove the illegal and unauthorized construction of underground water sewerage RCC pipe from the suit land. 3. The case of the petitioner-plaintiff has been refuted by the respondents-defendants both on merits as also on the maintainability of the suit itself. It appears that when the case was listed for recording the statements of plaintiff witnesses, he failed to lead evidence. Thereafter, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure by the petitioner-plaintiff with the prayer that a Local Commissioner be appointed to demarcate the suit land to ascertain as to whether underground water sewerage RCC pipe stand laid under it or not. This application has been dismissed by the learned Court below by way of impugned order. 4. I have heard the learned counsel for the parties and have also gone through the impugned order as well as the material available on record. 5. A perusal of the order demonstrates that learned trial Court has assigned plausible reasons as to why it has rejected the application so filed by the present petitioner. It is mentioned in the order that the stage at which the application was filed under Order 26 Rule 9 of the Code of Civil Procedure by the petitioner-plaintiff, was when the case was being fixed for recording the statements of plaintiff''s witnesses. On one hand, no witness was got examined and on the other hand, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure with the prayer already mentioned above. On one hand, no witness was got examined and on the other hand, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure with the prayer already mentioned above. Learned trial Court thereafter held that Local Commissioner can be appointed in case the plaintiff had done everything to bring the spot situation on record, however, in the case in hand, there was nothing which had been done by the petitioner-plaintiff to bring the spot situation on record and, therefore, without a party being able to prima facie establish any right, the Court could not be called upon to create evidence in favour of the party by invoking the provisions of Order 26 Rule 9 of the Code of Civil Procedure. Learned trial Court has also held that plaintiff in fact had filed a suit for mandatory injunction and had not led any evidence to substantiate his pleadings. It further held that the plaintiff had to stand on his own legs and in this view of the matter also, application under Order 26 Rule 9 of the Code of Civil Procedure with the prayer therein could not have been allowed. 6. The findings so arrived at by the learned Court below, in my considered view, are correct findings. By no stretch of imagination the provisions of Order 26 Rule 9 of the Code of Civil Procedure can be permitted to be used by a party to create evidence in its favour. It is settled law that he who alleges, has to prove. It is the plaintiff, who is praying for a decree of mandatory injunction. Therefore, it was mandatory upon the plaintiff to have had produced cogent and reliable evidence on record to demonstrate that he was entitled for a decree of mandatory injunction. Simply because, as has been submitted by the learned counsel for the petitioner, the plaintiff is not able to establish his case of his own, he cannot be permitted to do so by filing an application under Order 26 Rule 9 of the Code of Civil Procedure. 7. Simply because, as has been submitted by the learned counsel for the petitioner, the plaintiff is not able to establish his case of his own, he cannot be permitted to do so by filing an application under Order 26 Rule 9 of the Code of Civil Procedure. 7. Order 26 Rule 9 of the Code of Civil Procedure provides as under: "Order 26 Rule 9: Commissions to make local investigations:- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court: Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules." 8. A perusal of the provisions of Order 26 Rule 9 of the Code of Civil Procedure demonstrates that a Commission for local investigation is to be appointed where the Court deems it to be requisite or proper for the purpose of elucidating any matter in dispute etc. In other words, Order 26 Rule 9 of the Code of Civil Procedure is not a tool which is to be used by the party to create evidence in its favour, in case the party on its own is not in a position to garner evidence to prove its case. 9. In this view of the matter, as there is no infirmity with the order impugned and further as there is no merit in the present petition, the same is dismissed. Miscellaneous applications, if any, also stands disposed of.