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AJAY MOHAN GOEL, J. (ORAL) –

By way of this petition, the petitioner has challenged order dated 05.06.2025, passed by the learned Trial Court in terms whereof the application filed under Order XXVI Rule 9 of the Civil Procedure Code by the petitioner/plaintiff for appointment of the Local Commissioner has been dismissed.

2. I have heard learned Senior Counsel for the petitioner and have also perused the impugned order. Learned Senior Counsel for the petitioner has submitted that in light of the fact that the defendant has extended his projection so as to touch the construction of the petitioner and further has carried out construction by not leaving any set back etc., towards the house of the petitioner, it was necessary that a technical expert was appointed to visit the site to ascertain all these facts and the application was filed by the petitioner with this intent so as to facilitate the adjudication of this petition. However, learned Trial Court has erred in dismissing the application by observing that the intent of the petitioner was to create evidence. Accordingly, he has prayed that as the impugned order is not sustainable in the eyes of law, the same be dismissed.

3. A perusal of the impugned order demonstrates that learned Trial Court rejected the application by inter alia holding that the contentions of the parties are to be proved by them by leading documentary as well as oral evidence and the Court cannot act as an instrumentality in collection of evidence on behalf of the parties. Learned Court also held that the provision of Order XXVI Rule 9 cannot be used in a routine manner to collect evidence, more so at the initial stage of the matter. Learned Court also held that as per the version of the plaintiff as was mentioned in Para-2 of the application, according to him, he had already proved the fact regarding which he had requested the appointment of the Local Commissioner and therefore also, indulgence shown to the petitioner would unnecessarily prolong the litigation and on said counts the application has been dismissed.

4. This Court is of the considered view that the findings returned by the learned Trial Court call for no interference.

5. Order XXVI Rule 9 of the Civil Procedure Code confers upon the Court the power that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, then, the Court may issue a Commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. Thus, the requirement of the provision is that it is the satisfaction of the Court which puts into motion the provision of Order XXVI Rule 9 and of course said satisfaction obviously can also be on the basis of the application of the parties also. But, the parties per se have no right under Order XXVI Rule 9 CPC to call upon the Court to appoint a Local Commissioner as a matter of right to visit the site and thus collect evidence, which a party has not been able to place before the Court to prove its case. The provisions of Order XXVI Rule 9 CPC are for the purpose of elucidating any matter in dispute and not creating any evidence in favour of either of the parties. The principle of law is that he who alleges has to prove. The contention of the learned Senior Counsel that the factum of defendant having carried out construction on setbacks and that his projection abutting the property of the plaintiff cannot be proved by the plaintiff himself by leading evidence cannot be accepted as all these facts could have been easily proved by the plaintiff and how that was to be done is not for this Court to advise the plaintiff.

6. Therefore, in light of above observations, as this Court does not finds any merit in the present petition, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of.

Petition dismissed.

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