IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO(Ord.) No.9 of 2008. Date of decision:01.05.2008. Smt.Sunpa Devi ….Plaintiff. Versus Sh.Naresh & Another ….Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. For the Respondents: Mr.Y.P. Sood, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the plaintiff-appellant against the judgment of the learned Additional District Judge remanding the matter afresh for trial to the learned trial Court. The appellant herein is the plaintiff who instituted the suit against respondents praying for a decree for permanent prohibitory and mandatory injunction. The learned trial Court decreed the suit. In appeal, the learned appellate Court held that demarcation report on the record Ex.P-3 could not be relied upon as it had not been proved in evidence and 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 merely marked as an exhibit. According to the learned appellate Court, it has simply been exhibited without anything more. The matter was, therefore, remanded to the trial Court for decision afresh after obtaining fresh demarcation. It is by now settled that a whole sale remand of the matter is to be avoided. In Bali Ram vs. Mela Ram and another, AIR 2003 HP 87, this Court has held: “13. Rule 9 of Order 26 of the Code of Civil Procedure (hereinafter referred to as `the Code’), empowers the Court to issue commission to make local investigation which may be required for the purpose of elucidating any matter in dispute. Though the object of the local investigation is not to collect evidence which can be taken in the Court, but the purpose is to obtain such evidence, which from its peculiar nature, can only be had on the spot with a view to elucidate any point which is left doubtful on the evidence produced before the Court. To issue a commission under Rule 9 of the Order 26 of the Code, it is not necessary that either or both the parties must apply for issue of commission. The Court can issue local commission suo motu, if, in the facts and circumstances of the case, it is deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in dispute. Though exercise of these powers is discretionary with 3 the Court, but in case the local investigation is requisite and proper in the facts and circumstances of the case, it should be exercised so that a final and just decision is rendered in the case.” In these circumstances, if the appellate Court was of the opinion that a fresh demarcation was required, it should have ordered such demarcation rather than remanding the matter for trial afresh. In these circumstances, this appeal is allowed. The judgment and decree of the learned Additional District Judge is quashed and set aside. A direction is issued that he will re-admit the case on the file of the Court and proceed to decide the case afresh after obtaining fresh demarcation of the case as laid down by this Court in Bali Ram’s case supra. There shall be no order as to costs. Parties are directed to appear before the learned Additional District Judge on 22.5.2008. Records of the courts below be sent back immediately. All interim orders shall stand vacated and all miscellaneous applications shall stand dismissed. May 1, 2008 (Dev Darshan Sud) (aks) Judge.