Himachal Pradesh High Court: In a petition filed under Article 227 of the Constitution to challenge the order dated 17-04-2019, Ajay Mohan Goel, J.*, opined that for specific allegation made by the petitioner, he had to stand on his own legs by adducing independent and reliable evidence and he could not invoke the provisions of Order 26, Rule 9 of the CPC and call upon the Court to generate evidence for him. Thus, the Court opined that the petitioner could not be permitted to call upon the Court by way of appointment of a Local Commissioner to create evidence to prove his allegation that the said suit land was encroached upon by the respondent.
Background
In May, 2017, the petitioner filed a suit against the respondent for permanent injunction to the effect that the respondent did not interfere or encroach upon or carry out any construction on the suit land by dispossessing the petitioner forcibly. Thereafter, an application was filed by the petitioner under Order 26, Rule 9 of the Civil Procedure Code, 1908 (‘CPC’) for the appointment of a Local Commissioner being a revenue expert to visit the spot to demarcate the suit land and report whether the defendant had encroached upon the area that was referred to in the application or not.
However, the Trial Court dismissed the application vide order dated 17-04-2019, and opined that the petitioner was now taking a destructive plea by moving the application for appointment of the Local Commissioner, as it implied that the petitioner was not aware of his own boundaries and rather, he was dragging the Court for collecting evidence on his behalf to prove that the certain portion of land stood encroached upon by the respondent.
Thus, the petitioner filed the present petition to challenge the order dated 17-04-2019.
Analysis, Law, and Decision
The Court upon perusal of the order passed by the Trial Court opined that it did not find any perversity in the impugned order. The Court opined that when it was a matter of record that the petitioner had sought amendment in the suit on the ground that during the pendency of the suit, certain part of the suit land was encroached by the respondent, which implied that the petitioner was aware of his boundaries and after that, he levelled allegations against the respondent. Thus, the petitioner could not be permitted to call upon the Court by way of appointment of a Local Commissioner to create evidence to prove his allegation that the said suit land was encroached upon by the defendant or not.
The Court reiterated that for specific allegation made by the petitioner, he had to stand on his own legs by adducing independent and reliable evidence and he could not invoke the provisions of Order 26, Rule 9 of the CPC and call upon the Court to generate evidence for him and accordingly, dismissed the petition.
[Sanjeev Kumar v. Yudhvir Singh, 2023 SCC OnLine HP 1650, decided on 08-12-2023]
*Judgment authored by: Justice Ajay Mohan Goel
Advocates who appeared in this case :
For the Petitioner: Ashok Sud, Senior Advocate with Khem Raj, Advocate;
For the Respondent: Sanjeev Kumar Suri, Advocate.
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