IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (Ord.) No. 382 of 2007 Date of decision : 16.6.2008 Tej Ram Sharma Appellant. Versus Ram Gopal Sood and another Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1No . For the petitioner: Mr. Romesh Verma, Advocate. For the Respondent No.1: Mr. Ashok Sood, Advocate. For the Respondent No.2: Mr. Shrawan Dogra, vice Mr. Sharawan Dogra, Advocate. Deepak Gupta, J. (Oral) This appeal is directed against the judgement dated 1.9.2007 passed by the learned District Judge, Shimla, in Civil Appeal No. 62-S/13 of 2006 whereby he has set-aside the judgement dated 26.6.2008 of the learned Civil Judge (Jr. Division) Court No.3, Shimla passed in Civil Suit No.85/1 of 2001. Briefly stated the facts of the case are that the respondent (here-in-after referred to as the plaintiff) filed a suit against the present petitioner (here-in-after referred to as the defendant No.1) as well as the Municipal 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 Corporation, Shimla, (here-in-after refer to as the defendant No.2). The case of the plaintiff is that he is owner of double storeyed building known as Vishwas Sadan, Shimla. In the plaint alleged dimensions of the plot were given. According to the plaintiff, the defendant No.1 while raising construction damaged the retaining wall constructed by the plaintiff. Thereafter, a compromise was entered into between the parties wherein the defendant had agreed to raise the pillars at a distance of 8 feet from the retaining wall of the plaintiff. According to the plaintiff, the defendant had violated the terms of the agreement and taking advantage of the absence of the plaintiff from Shimla has extended the construction over the lower retaining wall raised by the plaintiff and has encroached upon the land/property of the plaintiff. The plaintiff, therefore, prayed that defendant No.1 be directed to remove unauthorized construction which he has raised on the green area and over the retaining wall raised by the plaintiff. The suit was contested. The learned trial Court framed issues. The parties led evidence. The learned trial Court on perusal of the evidence came to the conclusion that the plaintiff was not entitled to the relief prayed for and his suit was accordingly dismissed. The plaintiff filed an appeal. This appeal has been disposed 3 of by a short order, relevant portion of which reads as follows:- “However, the learned trial Court has dismissed the suit on the premise that the plaintiff/appellant, Ram Gopal Sud, has not proved the aforesaid encroachments because he did not move any application under Order 26 Rule 9 of the Code of Civil Procedure for local investigation. Such view apparently is contrary to law. Since, it is a case of alleged encroachment and also a case of boundary dispute, it was the boundened and pious duty of the learned trial Court to get the local investigation done suo moto so that the controversy could be legally decided once for all. For this purpose, I place reliance on the case of “Bali Ram vs. Mela Ram and another” AIR 2003 H.P. 87” I am constrained to observe that the learned District Judge did not even care to read the judgement of the learned trial Court. There is not even single line in the judgement of the learned trial Court which would lead to the conclusion that the suit was dismissed on the ground that plaintiff had failed to file any application under Order 26 Rule 9. In fact, the plaintiff had examined a technical expert. The learned trial Court did not believe the evidence of the technical expert and thereafter dismissed the suit. The entire basis of the judgement of the learned District Judge is itself erroneous and therefore the said judgement is liable to be set-aside. In view of the above discussion, I set-aside the judgement of the learned District Judge, Shimla and 4 remand the case to the District Judge to decide the same on its own merits in accordance with law. I may add that the learned District Judge in para 25 has observed that both the parties had expressed some desire to lead additional evidence. In case, any party wants to lead additional evidence, the said party may file application in this regard before the learned District Judge on or before the next date. No application in this regard shall be entertained after the next date. In case, such an application is filed, the same shall be decided by the learned District Judge alongwith appeal. In case, he comes to the conclusion that some additional evidence is required he shall either record the same himself or ask the trial Court to record the evidence and submit the report to him. He shall not remand the whole case. I may make it clear that any observation made by me shall not be construed an expression of opinion on the merits of the main case. Parties through their counsel are directed to appear before the District Judge, Shimla on 28th July, 2008. Appeal allowed in the aforesaid terms. No order as to costs. 16th June, 2008 ( Deepak Gupta ), J. ™