C.R. No. 593 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 593 of 2011 Date of decision : 28.1.2011 Tarlochan Singh and another ......Petitioners Versus Surinder Singh and others .......Respondents ***** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. M.M. Mohan, Advocate, for the petitioners. **** SABINA, J. Plaintiffs-petitioners filed a suit for permanent injunction seeking a direction that defendants be restrained from interfering in their peaceful possession. During the pendency of the suit, the relief of mandatory injunction was also sought by the plaintiffs by amending their plaint. It was prayed that the defendants be directed to restore the foundations of the shops filled by the plaintiffs shown in red colour. An additional issue qua the relief of mandatory injunction was framed on 12.5.2010. Plaintiffs moved an application under Order XXVI Rule 9 of the Code of Civil Procedure seeking appointment of Local Commissioner. Vide the impugned order the said application was dismissed by the trial Court. Hence, the present petition by the plaintiffs. Learned counsel for the petitioners has submitted that the appointment of Local Commissioner was very necessary for the just decision of the case. Initially, no issue had been framed qua relief of C.R. No. 593 of 2011 2 mandatory injunction and the additional issued in this regard had been framed on 12.5.2010. An expert was required to be examined to establish whether the demolished portion of the foundation had been constructed by the petitioners alongwith the standing portion. After hearing the learned counsel for the petitioners, I am of the opinion that the instant petition deserves dismissal. Plaintiffs had initially filed a suit for permanent injunction. Thereafter, plaintiffs moved an application for permission to amend the plaint and also sought relief qua mandatory provision. The said application was allowed vide order dated 15.6.2005. Thereafter parties led their evidence. Now the case is listed for final arguments. The plaintiffs, however, moved the application in question after a long delay. Although, an additional issue qua mandatory injunction has been framed vide order dated 12.5.2010, but the plaintiffs knew their case and had to lead evidence in order to establish their pleas. The plaintiffs were required to establish that the defendants had demolished some portion of the foundations. Since the portion in question has already been demolished, building expert will not be necessary to be examined. Moreover, Local Commissioner cannot be appointed to collect evidence for the party. The impugned order does not suffer from any illegality and calls for no interference. Dismissed. (SABINA) JUDGE January 28, 2011 Anand