Bish Ram vs Het Ram and Others

Dev Darshan, J.—All the respondents are served and have been proceeded against ex-parte by this Court vide order dated 15.12.2011. This petition has been preferred by the plaintiff against the order passed by learned Civil Judge (Senior Division), Solan rejecting the application instituted by the plaintiff praying for appointment of the commissioner under Order 26, Rule 9 of the CPC to ascertain/demarcate the land in dispute. The plaintiff instituted the suit out of which these proceedings arise, praying for a permanent and mandatory injunction against the defendant/respondent on basis of title. Apart from the other evidence on record, there is demarcation report Ex. PW4/B which was relied upon by the plaintiff in support of his case. Learned trial Court dealing with this aspect rejected the report on the ground that the Kanungo, who appeared as PW4 had not carried out the demarcation according to the instructions issued by the Financial Commissioner and in these circumstances, the so called encroachment indicated in the report could not be accepted. The suit of the plaintiff was dismissed and the appeal was preferred before the learned District judge as all the issues were decided against the plaintiff. An application u/s 151 of the CPC was filed with the prayer that the case be remanded to the learned trial Court as respondents No. 2 had died on 15.4.2003 during the pendency of the civil suit and his legal representatives are required to be impleaded. The learned Appellate Court holds that from the record it was found that an application under Order 22, Rules 4 and 9 of the CPC was in fact filed before the learned trial Court but has not been dealt with, therefore, requires to be disposed of in accordance with law. In these circumstances, the judgment and decree was set aside and the case was remanded back to the learned trail Court with a direction to decide the suit afresh in accordance with law after granting opportunity to the plaintiff to take such other and further steps and to allow the defendants to file objections, if any.

On remand the present application was filed. I find from the order of the learned trial Court that though the principle of law urged that the Court will not act as an active participant in assisting any party to collect evidence but nonetheless, the application was rejected on grounds which are not tenable. The learned trial Court did not take into consideration the decision of this Court in Bali Ram Vs. Mela Ram and Another, holding:

Rule 9 of Order 26 of the CPC (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.

In Haryana Waqf Board Vs. Shanti Sarup and Others, the Supreme Court reaffirmed this principle holding:

Admittedly, in this case, an application was filed under Order 26, Rule 9 of the CPC which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26, Rule 9 CPC.

The appellate Court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per Para 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.

It is also not in dispute that even before the appellate Court, the appellant Board had filed an application for appointment of Local Commissioner for demarcation of the suit land. In order view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of the nature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.

The trial Court in these circumstances was in grave error in not considering the fact that fresh demarcation would not prove the case of the plaintiff per se but would require proof and rebuttal by the defendants before acceptance of its authenticity. Mere fact that the demarcation has been carried out/will be carried out does not establish the case of the plaintiff. In these circumstances, this petition is allowed. The order of the learned Civil Judge (Senior Division), Solan the subject matter of this petition is quashed and set aside. The application filed by the petitioner herein before the learned trial Court is allowed. It is also directed that the defendants shall be granted an opportunity of cross-examining the commissioner in addition to leading such other and further evidence in support of their contentions that no encroachment in fact has been made. Petition is disposed of accordingly. No order as to the costs. The parties are directed to appear before the learned trial Court on 29th June, 2012. Notice be sent by the learned trial Court to those of the parties who are unrepresented before this Court. The record of the learned trial Court be sent back forthwith.