IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.59 of 2011 Date of decision: 18.4.2011 Lekh Raj Tekra …. Petitioner Versus Raniya Ram and ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? Yes. For the petitioner: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. For the respondents: Mr.Bimal Gupta, Advocate. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition is directed against the order dated 11.1.2011 passed by the learned Additional District Judge, Solan in Civil Appeal No.10-S/14 of 2009 (probably it should have been numbered as Civil Miscellaneous Appeal and not Civil appeal) whereby he set aside the order of the learned Trial Court dated 21.8.2009 2 dismissing the application for interim relief filed by the respondents (hereinafter referred to as the ‘plaintiffs’). The learned Lower Appellate Court vide the impugned order has remanded the case back to the learned Trial court to hear the matter afresh and decide both the applications together and has further directed the parties to maintain status quo qua the nature and possession of the suit land in question. 2. Briefly stated the facts of the case are that the plaintiffs filed a suit for declaration and permanent prohibitory injunction against the present petitioner (hereinafter referred to as the ‘defendant’). It is alleged in the suit that plaintiffs No.1 to 3 are owners of two separate parcels of land situate in Mauja Basal Patti Kather, Pargana Salumna Basal, Tehsil and District Solan, H.P. According to the plaintiffs, their residential houses were existing between Chambaghat Bawra Road and Chambaghat Basal Road. It was also alleged that a bye pass road is existing on the spot which is being used by the plaintiffs and the other members of the 3 public and they have a right of easement and prescription by way of necessity. They claimed that a path, 1½ meters in width, exists on the road. It was further alleged that this bye pass road passes through Khasra No.2341/442 which was purchased by the defendant on 10.4.2008. According to the plaintiffs, the defendant is trying to raise construction on this Khasra number and thereby is going to block the path. It was alleged that the defendant has no right to interfere in the easementary rights of the plaintiffs and, therefore, the suit was filed not only in the personal capacity but also on behalf of the general public. 3. The defendant contested the suit and denied that any bye pass road as claimed existed on the spot. It was denied that the plaintiffs have any easementary right over the path. 4. The learned Trial Court came to the conclusion that the plaintiffs had failed to show that any prima facie case existed in their favour 4 and hence rejected the application for stay filed by the plaintiffs alongwith the suit. 5. The plaintiffs filed an appeal. Alongwith the appeal, the plaintiffs annexed site plan, photographs, complaints to authorities and letters of the public authorities. Relying upon these documents, the learned Lower Appellate Court held as follows:- “The appellants have proved prima facie case and has pleaded easement of prescription and necessity and in case the interim injunction is not granted in their favour, the applicants shall suffer irreparable loss and injury which cannot be compensated in terms of money, hence, the balance of convenience is also in favour of appellants.” 6. He further went on to hold as follows:- “From the aforesaid discussion, prima facie, it is proved on record that path is in existence on spot.” 7. After virtually giving findings in favour of the plaintiffs, the learned Lower Appellate Court came to the conclusion that the learned Trial Court should have also passed some order on the application under order 26 Rule 9, CPC filed by the plaintiffs for appointment of Local 5 Commissioner which was heard by it alongwith application under Order 39 Rules 1 & 2, CPC and observed that by not deciding the application for appointment of Local Commissioner with the application for grant of stay, grave injustice has been caused to the plaintiff. Thereafter, the learned Lower Appellate Court set aside the order of the learned Trial Court and directed the learned Trial Court to re-hear the matter afresh. Hence the present petition. 8. I am constrained to observe that the learned Lower Appellate Court has not at all dealt with the matter in a manner in which it is expected to be dealt with by an officer of the rank of District Judge. The Learned Lower Appellate Court has gone out of his way to find fault with the orders of the learned Trial Court and one of the main reasons which weighed with the learned Lower Appellate Court was that the application for stay had not been decided by the learned Trial Court within 30 days. It also came to the conclusion that application under order 26 Rule 9, CPC for appointment of Local 6 Commissioner had been filed and on 3.8.2009 the learned Trial Court heard arguments on both the applications but when the order was pronounced on 21.8.2009, only the application under order 39 Rule 1 & 2, CPC was decided but no order was passed on application under Order 26 Rule 9, CPC for appointment of Local Commissioner. According to the learned Lower Appellate Court, the application for appointment of Local Commissioner should have been decided alongwith the application for stay. 9. In my view, this view of the learned Lower Appellate Court is totally incorrect. Order 26 Rule 9, CPC reads as follows:- “9. Commissions to make local investigation.- 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, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, 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. 7 Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.” 10. Local Investigation is to be ordered only when the Court deems it necessary or proper and normally Local Commissioners are not to be appointed to assist the parties to collect evidence. In a normal situation, an application for appointment of Local Commissioner would lie at a later stage and not at the stage of deciding the interim application. It is for the plaintiff to stand on his own feet and to show to the Court on the material collected by it that it has a prima facie case. The plaintiff cannot move in fits and starts and keep on adding documents at every stage. When an appeal is filed against the order of the learned Trial Court, only those documents which are on the record of the learned Trial Court should normally be looked into unless the appellant files an application and makes out a case that other documents which for some reasons he could not produce before the 8 learned Trial Court are essential for deciding the appeal should be looked into at the appellate stage. 11. In any event, I am of the clear-cut view that the learned Lower Appellate Court should not have abdicated its functions and duties and remanded the case back to the learned Trial Court. Assuming that there was some error in the order of the learned Trial Court, the learned Lower Appellate Court itself should have rectified the error. In simple applications like a stay application, the power of remand cannot be used. If such power is permitted to be exercised in such a manner and remand of the cases is permitted so liberally then trial of cases shall never come to an end. Even in main appeals the Appellate Courts normally should not remand the cases and should themselves decide the same. This Court has repeatedly held that the remand of a case should be ordered only as a last recourse and normally the learned Lower Appellate Court should carry out its 9 functions and duties and decide the appeal on merits. 12. This Court in exercise of its jurisdiction under Article 227 of the Constitution of India cannot substitute its opinions for the findings of the courts below. However, a duty is cast upon this Court under Article 227 of the Constitution of India to ensure that the Courts falling under the supervisory jurisdiction of the Court work in a proper manner. The approach of the learned Lower Appellate Court, as pointed out above, is totally erroneous. Therefore, without going into the merits of the rival contentions of the parties, the order of the learned Additional District Judge, Solan is set aside and the matter is remanded back to him. 13. The parties through their counsel are directed to appear before the learned Lower Appellate Court on 9.5.2011. The learned Trial Court shall make an endeavour to decide the matter at the earliest and in any event not later than 9th June, 2011. The Registry is directed to send the record of the learned Lower Appellate 10 Court back so as to reach well before the date fixed. It is made clear that the learned Lower Appellate Court shall decide the matter totally uninfluenced by the earlier observations made by it after hearing the parties in accordance with law. 14. The petition is disposed of in the aforesaid terms. No order as to costs. April 18, 2011. ( Deepak Gupta ) (m) Judge