RAMESH CHAND Vs. KAMLA DEVI

JUDGEMENT

(1.) Present petition has been preferred against order dtd. 3/9/2021 passed by Civil Judge, Court No.IV, Hamirpur, H.P., in CMA No.145 of 2021, in Civil Suit No.487 of 2017, titled as Ramesh Chand @ Ramesh Kumar vs. Kamla Devi and others, whereby an application preferred by the petitioner-plaintiff, under Order 26 Rule 9 of Code of Civil Procedure (in short 'CPC') read with Sec. 75 of CPC, has been dismissed on the ground that in the application petitioner-plaintiff had virtually requested the Court to collect the evidence and the provisions under Order 26 Rule 9 CPC cannot be used for the said purpose.

(2.) Petitioner-plaintiff has filed suit for declaration that he is absolute owner in possession of land comprised in Khasra No.3331/1510, 1511 and has right over the path to this land through the land comprised in Khasra No.1521, 1522 and 1523, situated in Tika Up-Mahal Gaura, Rappa Bajuri, Tehsil and District Hamirpur, H.P., and for Permanent Prohibitory Injunction against respondents-defendants from obstructing the path in question and for mandatory injunction, if respondents-defendants succeed in obstructing the said path.

(3.) During pendency of the suit, an application under Order 26 Rule 9 CPC was filed by the plaintiff for appointing Local Commissioner with averments that despite interim stay order, respondents-defendants had wrongly and illegally started construction work of walls over the path over the suit land with intention to block path leading to the house of the petitioner-plaintiff duly shown in Site Plans Ex.PW.1/A, Ex.PW.3/A and Ex.PW.3/B. It was further stated that when respondents-defendants did not pay heed to the request of the petitioner-plaintiff to obey the stay order and did not stop work, petitioner-plaintiff had filed an application in the Police Station Hamirpur, which was entered as G.D. No.23, dtd. 4/4/2021, but no action was taken by the police except directing the petitioner-plaintiff to approach the Civil Court for redressal of his grievances.