Party Cannot Invoke Order 26 Rule 9 CPC Seeking Appointment Of Local Commissioner To Generate Evidence For Him: Himachal Pradesh HC
The Himachal Pradesh High Court observed that a party in a civil suit cannot invoke Order 26 Rule 9 CPC seeking appointment of a commissioner for local investigation to generate evidence for him.
The Court emphasized that the parties involved are responsible for independently securing the evidence necessary to support their claims of encroachment and cannot compel court to generate evidence for them.
The Bench of Justice Ajay Mohan Goel observed, “This Court reiterates that as it is the specific allegation of the plaintiff that part of the suit land mentioned in the application was encroached by the defendant during the pendency of the suit, now to prove this fact, the petitioner/plaintiff has to stand on his own legs by adducing independent and reliable evidence and he cannot invoke the provisions of Order 26, Rule 9 of the Code of Civil Procedure and call upon the Court to generate evidence for him”.
Senior Advocate Ashok Sud appeared for the Petitioner and Advocate Sanjeev Kumar Suri appeared for the Respondent.
The Petitioner, initiated a suit against the Respondent, seeking a permanent injunction to prevent interference, encroachment, or construction on the suit land. The suit, prompted the Petitioner to file an application under Order 26, Rule 9 of the Code of Civil Procedure, 1908 (CPC), requesting for the appointment of a Local Commissioner, specifically a revenue expert, to visit the site, demarcate the land, and report on whether the defendant had encroached upon the specified area during the suit's pendency. The Trial Court dismissed the Application. Aggrieved, the Petitioner approached the High Court challenging the order.
The High Court noted that the plaintiff, had filed the suit for permanent prohibitory and mandatory injunction, alleging encroachment on a specific portion by the Respondent during the suit's pendency. The Court emphasized that since the Petitioner had alleged encroachment during the suit, they must independently provide credible evidence. The Court therefore held that Order 26, Rule 9 of the CPC cannot be used to compel the court to generate evidence on the Petitioner’s behalf.
Accordingly, the Court dismissed the Petition.
Cause Title: Sanjeev Kumar alias Sanjeev Raizada v Sh. Yudhvir Singh
