PREM SINGH THAKUR Vs. GURSAGAR SINGH CHAUDHARY

JUDGEMENT

(1.) 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.

(2.) 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 under Section 151 read with Section 94 of the Code of Civil Procedure 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 under Section 75, 94 Order 26 Rule 9 of the Code of Civil Procedure 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.

(3.) LEARNED counsel appearing for the petitioner relies upon the decision in Haryana Waqf Board vs. Shanti Sarup and others (2008)8 SCC 671 holding: 4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure 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.