IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 494 of 2009 Date of decision : 24.2.2010 ____________________________________________________ Rajinder Singh …Petitioner. Versus H.P. State Electricity Board …Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? For the petitioner : Mr. Ashwani K. Sharma, Advocate. For the Respondent : Mr. Baldev Singh, Advocate. Kuldip Singh, Judge(Oral) This is a petition under Article 227 of the Constitution of India against the order dated 16.6.2009 passed by learned Civil Judge, Jr. Division, Dehra, allowing the application of the respondent /plaintiff under Order 26 Rule 9 CPC by appointing Tehsildar, Dehra as Local Commissioner to carry out the demarcation and pin point the encroachment over suit land if any. 2. The grievance of the petitioner is that earlier there was litigation between the parties and the part of the suit land which was encroached by respondent was handed over to the petitioner in ______________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ?Yes 2 execution petition. Thereafter the petitioner raised his construction. The respondent thereafter filed a suit for permanent prohibitory injunction and in the alternative for possession by taking a false plea that the petitioner has raised construction on some portion of land owned by respondent. It has been submitted that as yet parties have not led any evidence in the suit and in order to create evidence the respondent has filed the present application. It has been submitted on behalf of the petitioner that the application under Order 26 rule 9 CPC cannot be allowed to create evidence. 3. On the contrary, learned counsel for the respondent has submitted that the learned Court below has appointed the Local Commissioner after taking into consideration the facts and circumstances of the case and no fault can be found with the impugned order. The respondent had filed suit for permanent prohibitory injunction and in the alternative for possession. It is the case of the respondent that during the pendency of the suit the petitioner has encroached upon some portion of the suit land by removing the fence. It is also the case of the respondent that in order to identify the actual land encroached by the petitioner the appointment of Local commissioner is necessary. 4. The application for appointment of Local Commissioner in the present case has been filed on the allegations that the petitioner has encroached some portion of the suit land. In these circumstances there is no question of demarcation and identification of suit land before filing of such suit. The land allegedly encroached upon by the petitioner can be identified by demarcation by the Local Commissioner. 3 There is no illegality or error of jurisdiction in the impugned order. The petitioner though contested the application but ultimately he agreed for appointment of Tehsildar as Local Commissioner as is clear from the impugned order. In the facts and circumstances of the case, no fault can be found with the appointment of Local Commissioner to identify the alleged encroachment made by the petitioner. There is no merit in the petition which is accordingly dismissed. 5. The parties through their learned counsel are directed to appear before the learned trial Court on 18.3.2010. The record of the learned trial Court be sent back immediately, so as to reach before the date fixed. 6. In view of disposal of main petition the CMP No.607 of 2009 is rendered infructuous. February 24, 2010 (Kuldip Singh) (sks) Judge.