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2023 DIGILAW 353 (HP)

Saroj Sharma v. Rakesh Kumar

2023-06-16

JYOTSNA REWAL DUA

body2023
JUDGMENT : JYOTSNA REWAL DUA, J. 1. Petitioner is the plaintiff before the learned Trial Court. The issues are yet to be framed in the civil suit instituted by him in the year 2017. An application moved by the plaintiff/petitioner under Order 26 Rule 9 of the Code of Civil Procedure (CPC) was dismissed by the learned Trial Court on 12.06.2019. This order has been assailed by the plaintiff in the instant petition. Pursuant to order dated 26.07.2019 passed in the instant petition, further proceedings in the civil suit instituted by the plaintiff have been stayed. 2. Facts: (i) Plaintiff instituted the civil suit against the respondents/defendants for grant of decree of permanent prohibitory injunction by restraining the defendants from encroaching upon the suit land as well as the ‘gair mumkin path’. The case set up by the plaintiff was that she and her sister were owners in possession of the land & one storey building comprised in Khata/Khatauni No. 38/89, Khasra No. 970 measuring 0-01-78 hectare situate at Mohal Tutu, Tehsil Shimla, District Shimla, H.P. There was ‘gair mumkin path’ 1 x 19 meter existing upon the land comprised in Khewat No. 38, Khasra No. 971/4 leading to the property of the plaintiff from the main road. On 03.10.2017, the plaintiff found that the defendants had encroached not only the suit land but also the path. Request made by the plaintiff to the defendants for stopping the work did not yield desired result, hence, suit was filed. (ii) Defendants denied plaintiff’s allegations in their written statement. It was specific stand of the defendants that they were neither digging the suit land nor had they encroached upon the same. Allegation of having encroached the path was also refuted. It was submitted that the path was away from the land of the defendants and was common to be used by the plaintiff and the defendants. That there was no question of causing any damage to the said path by the defendants. Defendants further asserted that they had also filed a suit for permanent prohibitory injunction against the father of the plaintiff, which was pending adjudication before the competent authority. That there was no question of causing any damage to the said path by the defendants. Defendants further asserted that they had also filed a suit for permanent prohibitory injunction against the father of the plaintiff, which was pending adjudication before the competent authority. (iii) Plaintiff moved an application under Order 26 Rule 9 read with Section 151 CPC with prayer to appoint the local commissioner “having technical knowledge of revenue to visit the spot of the suit property and investigate the matter and further place the spot inspection report qua encroachment, digging, destruction of the common path etc.” In the aforesaid application, the plaintiff inter-alia pleaded that even after passing of interim injunction order in the civil suit, defendants had continued to encroach upon plaintiff’s land, consequently the plaintiff had to file an application under Order 39 Rule 2A CPC, which was pending adjudication before the learned Trial Court. That the only passage available to the plaintiff to reach her house had been damaged by the defendants and that there was no other path available to the plaintiff. (iv) Defendants filed detailed reply to plaintiff’s application seeking appointment of local commissioner. In their reply, the defendants categorically pleaded that there was an earlier demarcation report dated 22.09.2015 of the spot. This demarcation was conducted by the revenue officials and was in favour of the defendants. The factum of this demarcation report was concealed by the plaintiff from the Court. There was no occasion for carrying out fresh demarcation/appointment of local commissioner. The defendants denied that they were digging the suit land or the path or that they had damaged the suit land or the path as alleged by the plaintiff. Defendants denied having encroached upon the suit land or the common path. It was further pleaded that the Police had also conducted demarcation of the spot. At the instance of the defendants, an FIR was registered against the father of the plaintiff under Section 451 of the Indian Penal Code. That the plaintiff and her father wanted to encroach upon the land of the defendants. The present suit was filed by them with that intention. At the instance of the defendants, an FIR was registered against the father of the plaintiff under Section 451 of the Indian Penal Code. That the plaintiff and her father wanted to encroach upon the land of the defendants. The present suit was filed by them with that intention. (v) On considering the pleadings and submissions made for the parties, learned Trial Court vide order dated 12.06.2019 dismissed the application under Order 26 Rule 9 CPC giving occasion to the plaintiff to invoke the jurisdiction of this Court under Article 227 of the Constitution of India. 3. I have heard learned Senior Counsel for the plaintiff/petitioner, learned counsel for the defendants/respondents and also considered the case file. 4. Observations: (i) The defendants in their reply to plaintiffs’ application under Order 26 Rule 9 CPC had inter-alia supplied following information with respect to a demarcation already conducted on the spot by the revenue officials on 22.09.2015: “2.......The demarcation was conducted on the spot by the revenue officials on 22.09.2015 and recently thereafter and the same is in favour of the replying defendants and against the plaintiff/applicant. The plaintiff has not filed any objection to the report of demarcation dated 22.09.2015 till date and hence the present application is liable to be dismissed on this ground.” The above information has not been refuted by the plaintiff. The plaintiff had also not disclosed the fact of there being an earlier demarcation report of the spot either in her plaint or in her application seeking appointment of local commissioner. Evidently the plaintiff had concealed this material fact while seeking appointment of the local commissioner. The plaintiff was expected to come to Court with clean hands. In case there had been any previous demarcation report, it was for the plaintiff to have disclosed this material fact. (ii) Learned Senior counsel for the plaintiff/petitioner submitted that the defendants had continued to encroach upon plaintiff’s land even after grant of interim injunction order. However for this allegation, plaintiff has already taken recourse to legal remedy under Order 39 Rule 2A CPC. Learned counsel for the plaintiff next submitted that the defendants had encroached over the suit land in the year 2017 i.e. after demarcation was carried out by the revenue officials on 22.09.2015 and therefore the earlier demarcation would not of any help. This submission cannot be accepted. Learned counsel for the plaintiff next submitted that the defendants had encroached over the suit land in the year 2017 i.e. after demarcation was carried out by the revenue officials on 22.09.2015 and therefore the earlier demarcation would not of any help. This submission cannot be accepted. It is the case projected by the plaintiff that the defendants had encroached over the suit land and also on the path. The fact has been denied by the defendants. The suit has been filed by the plaintiff for the grant of decree of permanent prohibitory injunction for restraining the defendants from encroaching upon the suit land as well as for grant of decree of mandatory injunction by directing the defendants to restore the suit land to its original position. It is for the plaintiff to prove her case in accordance with law and not for the Court to hunt & create evidence for her. (iii) The issues in the civil suit as submitted by learned counsel for the parties are yet to be framed. Evidence in the matter is yet to be led. In the aforesaid circumstances, learned Trial Court had rightly observed that the plaintiff cannot adopt short cut method at the very first instance without any impending circumstances or actual necessity causing Court to engage itself in collecting the evidence on behalf of the parties. (iv) Learned Trial Court had also observed that after the parties lead evidence and in case there is any ambiguity in the evidence so led by the parties, it is only at that stage, the same could be elucidated with the help of the local commissioner. Learned Trial Court has granted liberty to the parties to move similar application at an appropriate stage of the trial if permissible in law. Such a recourse would also be in consonance with following observations made in Bali Ram vs. Mela Ram and Another, AIR 2003 H.P. 87 : “13. Rule 9 of Order 26 of the Code of Civil Procedure (hereafter referred to as 'the Code'), empowers the Court to issue commission to make local investigation which may be required for the purpose of elucidating any matter in dispute. Rule 9 of Order 26 of the Code of Civil Procedure (hereafter referred to as 'the Code'), empowers the Court to issue commission to make local investigation which may be required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect evidence which can be taken in the Court, but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court. To issue a commission under Rule 9 of Order 26 of the Code, it is not necessary that either or both the parties must apply for issue of commission. The Court can issue local commission suo motu, if, in the facts and circumstances of the case, it is deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in dispute. Though exercise of these powers is discretionary with the Court, but in case the local investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a final and just decision is rendered in the case.” 5. For the foregoing reasons, I do not find any good reason to interfere with the impugned order passed by the learned Trial Court on 12.06.2019 dismissing plaintiff-petitioner’s application moved under Order 26 Rule 9 CPC. Present petition is dismissed. All pending miscellaneous applications if any, shall also stand disposed of. 6. Interim order dated 26.07.2019 passed in this petition staying further proceedings in the civil suit instituted by the plaintiff/petitioner is vacated. Parties through their learned counsel are directed to appear before learned Trial Court on 30.06.2023.