Parties Barred From Using Court To 'Create Evidence' By Seeking Appointment Of Commissioner Under O26 R9 CPC: HP High Court

The Himachal Pradesh High Court has ruled that a party cannot use the court to "create evidence" through the appointment of a commissioner by taking recourse to Order 26 Rule 9 CPC. Dismissing a petition under Article 227 of the Constitution of India in terms of which the petitioner had contested the dismissal of his application under Order 26, Rule 9 by the trial court Justice Ajay Mohan Goel observed,“Petitioner cannot be permitted to call upon the Court by way of appointment of a Local Commissioner to create evidence to prove his allegation as to whether part of the suit land mentioned in the application filed under Order 26, Rule 9 of the Code of Civil Procedure stood encroached upon by the defendant or not”.Order 26 Rule 9 CPC empowers the court to appoint a local commissioner to investigate and report on any matter in dispute that requires local investigation. This could involve examining accounts, inspecting property, taking measurements, or gathering evidence that cannot be readily presented in court.The background of the case involved a land dispute where the Petitioner/plaintiff, Sanjeev Kumara filed a suit in May 2017 against the defendant, Yudhvir Singh, seeking a permanent injunction to prevent interference, encroachment, or construction on the disputed land. Amidst the ongoing suit, the plaintiff applied in January 2019 under Order 26, Rule 9, requesting the appointment of a Local Commissioner, specifically a revenue expert, to demarcate the land in question.However, the application was dismissed by the Trial Court in 2019. The Court's reasoning was rooted in the plaintiff's earlier plea for amendment to the suit, where he claimed encroachment by the defendant on a specific portion of the land during the pendency of the case. The Trial Court held that the plaintiff, having alleged encroachment and having sought an amendment based on this, could not now use the court to gather evidence through the appointment of a Local Commissioner.Justice Goel, after careful consideration and hearing arguments from both sides, affirmed the Trial Court's decision. The court emphasised that the plaintiff, having already claimed knowledge of the boundaries and the alleged encroachment, could not shift the responsibility onto the court to gather evidence.“When it is 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 stood encroached by the defendant, this pre-supposes that the petitioner was aware of his boundaries and only thereafter, he levelled allegations against the respondent of encroaching upon his land. In this background, but natural, the petitioner cannot be permitted to call upon the Court by way of appointment of a Local Commissioner to create evidence to prove his allegation”, the court recorded.Finding the stand of the plaintiff contradictory and indicative of an attempt to drag the Court for collecting evidence on his behalf Justice Goel reiterated that when a plaintiff alleges encroachment during the pendency of a suit, it is their responsibility to provide evidence independently.“..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”, the court concluded while dismissing the plea.Case Title: Sh. Sanjeev Kumar alias Sanjeev Raizada Vs Sh. Yudhvir SinghCitation: 2023 LiveLaw (HP) 80Click Here To Read/Download Judgment

Parties Barred From Using Court To 'Create Evidence' By Seeking Appointment Of Commissioner Under O26 R9 CPC: HP High Court

Basit Amin Makhdoomi

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