Prem Singh Thakur vs Gursagar Singh Chaudhary, Gurbir Kaur and Miss Kamal Punnet Kaur

Dev Darshan Sud, J.—This petition has been preferred by the petitioner-defendant against the order passed by the learned District Judge, Shimla appointing Local Commissioner under Order 26 Rule 9 of the Code of Civil Procedure. The learned Court comes to the conclusion that since it is a boundary dispute the appointment of the Local Commissioner was necessitated by the facts as contained in the application.

Learned counsel appearing for the petitioner submits that this exercise is being taken time and again by the Courts below and the respondents herein are guilty of manipulating and abusing the process of law. In particular, he refers to the application dated 14.1.999 preferred by the respondents herein under Order 26 Rule 9 read with Sections 75, 94 and 151 of the Code of Civil Procedure. This application was dismissed by a detailed order by the learned trial Court on 22.1.1999. Again, another application was preferred u/s 151 read with Section 94 of the CPC with a prayer that the petitioner herein was violating the interim injunction order and therefore, police assistance be provided for enforcement of the order as also the Local Commissioner be ordered to visit the spot to ensure the compliance of the order. This application was also dismissed by the learned trial Court. The third application u/s 75, 94 Order 26 Rule 9 of the CPC was preferred by the respondents herein on 13.12.1993 with a prayer that ex-parte Local Commissioner be appointed for visiting the suit land/spot and to ascertain the condition/situation of the construction made by the petitioner herein.

Another application under the same provisions of law including Chapter I M of the High Court Rules and Orders was filed with the repeated prayer that the Local Commissioner be appointed for the purpose of demarcation of the properties of the parties to determine the exact area constructed by the defendant and to find out whether or not any construction has been made. This application was also on the same fact. The present application is the last one in the series.

Learned counsel appearing for the petitioner relies upon the decision in Haryana Waqf Board Vs. Shanti Sarup and Others, 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 a Local Commissioner for demarcation of the suit land. In our 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 preset case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.

There can be no dispute with the proposition of law as laid down by the Supreme Court but surely it cannot be interpreted as a precedent granting liberty to a litigant to file a series of applications one after the other in tandem. That would be nothing, but an abuse of the process of law. I find that the learned Appellate Court is in grave error in granting the order for appointment of the Local Commissioner, which is accordingly quashed and set aside.

So far as the dispute concerning the construction by any party is concerned, it is undisputed before me that the area is within the municipal limits of Shimla and is subject to the statutory provisions of the Municipal Corporation Act and Town and Country Planning Act. Surely if a party feels aggrieved by any action of the other party, the appropriate remedy is that the aggrieved party shall have the remedy of approaching the statutory authority in question. With these observations, this petition stands dismissed.