Allowed

Janak Raj v. Atma Ram Deceased through Lrd Parveen

Himachal Pradesh HC15 Sept 2026CMPMO/163/2022

Case brief

AI extract

What is this about?

This High Court allowed a writ petition under Article 226 challenging the dismissal of an application for appointing a local commissioner in a civil suit regarding land encroachment. The High Court set aside the impugned order, holding that the application was based on bona fides since the encroachment occurred after the suit was filed, and the party should get an opportunity to prove their case.

What did the court decide?

The order dated 18.4.2022 passed by the trial Court is set aside subject to the petitioner paying costs of Rs. 10,000 to the defendants.

Janak Raj Vs Atma Ram Deceased through Lrd Parveen — Partition | Himachal Pradesh HC (2026)

¶1

1 2026:HHC:39537

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

¶3

CMPMO No. 163 of 2022

¶4

Decided on: 15.9.2026

¶5

Janak Raj

¶6

… Petitioner Versus Atma Ram …Respondent _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting?

¶7

For the Petitioners: Mr. Mukul Sood, Advocate. For the Respondents : Mr. Vivek Sharma and Mr. Bhairav Gupta, Advocates. Virender Singh, Judge (oral)

¶8

Petitioner Atma Ram has filed the present petition, under Article 227 of the Constitution of India, against the order dated 18.4.2022, passed by the Court of learned Civil Judge, Court No. II, Amb, District Una, H.P. (hereinafter referred to as ‘the trial Court’), in Civil Suit No. 52 of 2012, titled as, ‘Janak Raj versus Praveen Kumar’.

¶9

2 2026:HHC:39537

¶10

By way of order dated 18.4.2022, the learned trial Court, has dismissed the application, moved by the petitioner, under Order 26 Rule 9 CPC.

¶11

For the sake of convenience, parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.

¶12

Necessary facts, as borne out from the documents, annexed with the petition, may be summed up, as under:

¶13

Plaintiff has filed the suit for permanent prohibitory injunction, restraining the defendants from interfering, in any manner, raising any sort of construction, throwing or accumulating heaps of stones, cutting and removing and selling any trees, standing over the land measuring 00-01-55 hects., comprised in Khewat No. 250 min, khatauni No. 302 min, khasra No. 197, as entered in Nakal Misal Haquiyat Istemal for the year 2005-2006, situated in village Thanikpura, Tehsil Amb, District Una, H.P. (hereinafter referred to as, ‘the suit land’).

¶14

3 2026:HHC:39537

¶15

4.1 The said suit has been filed by the plaintiff on the ground that he is owner in possession of the suit land, alongwith co-sharers. The defendants are stated to be strangers to the suit land.

¶16

5 On the basis of above facts, a prayer has been made that the suit may kindly be allowed.

¶17

When, put to notice, the suit has been contested

¶18

by the defendants, denying the allegations, which have been levelled against them.

¶19

During the pendency of the lis, vide order dated 20.9.2018, the application, under Order 6 Rule 17 CPC was allowed. By way of amendment, plaintiff has added para 4A, which is re-produced, as under:

¶20

“The defendants who are clever shrewd headstrong persons in connivance with each other by taking advantage of the absence of the plaintiff from the village in the last week of April 2017 during the pendency of the suit and in subsistence of the injunction order had forcibly encroached over the part of the suit land denoted by letters ABC shown red in colour in the site plan attached by stacking heavy stones and put a fence without any right or title. The forcible possession by way of stacking of heavy stones is illegal and unlawful and is required to be removed. The alleged act of the defendants' amount to the invasion upon the rights of the plaintiff.”

¶21

4 2026:HHC:39537

¶22

After framing additional issues, the plaintiff has

¶23

moved application, under Order 26 Rule 9 CPC with a prayer to appoint some senior Revenue Officer or retired Tehsildar, as local Commissioner to determine the encroachment by conducting the demarcation.

¶24

The said application has been contested by the defendants on the ground that the lis was pending before the learned trial Court, since March, 2012. The plaintiff has already availed more than 10 opportunities to lead evidence. The application has been filed, when, the lis was pending for arguments.

¶25

The learned trial Court, after considering the rival contentions of the parties, has dismissed the application, under Order 26 Rule 9 CPC, vide order dated 18.4.2022.

¶26

The application for appointment of Local Commissioner has mainly been dismissed on the ground that the alleged encroachment, as per the stand taken by the plaintiff, in the plaint, was made in the year, 2012. Thereafter, the application has been filed, at a

¶27

5 2026:HHC:39537

¶28

belated stage, in the year 2021, when, the lis was pending for arguments.

¶29

Another ground, upon which, the application has been dismissed, is that the plaintiffs want to fill the lacunae in his case, firstly, by amending the plaint, and thereafter, by moving application under Order 26 Rule 9 CPC.

¶30

The said order has been assailed by the plaintiff, by way of the present petition, on the ground that whatsoever has been done, during the pendency of the lis, has been brought on record, by way of amendment of the plaint, under Order 6 Rule 17 CPC. Subsequently, the plaintiff was permitted to amend his plaint by adding para 4A to it. Thereafter, the learned trial Court has framed the issues.

¶31

On the basis of above facts, Mr. Mukul Sood, Advocate, appearing for the plaintiff has prayed that the present petition may kindly be allowed by setting aside the order, passed by the learned trial Court.

¶32

Per contra, Mr. Vivek Sharma and Mr. Bhairav Gupta, Advocates have argued that there is no

¶33

6 2026:HHC:39537

¶34

explanation, as to why, the application was moved, at a belated stage.

¶35

The another fact, which has been highlighted, in the present case, is that the application for appointment of Local Commissioner, was moved, when, the lis was pending for arguments, and if the application is allowed, it would amount to de novo trial, which is not permissible, under the law.

¶36

Heard.

¶37

The application under Order 26 Rule 9 CPC has been moved, when, the lis was pending for arguments, before the learned trial Court. Firstly, the application was moved by the petitioner, under Order 6 Rule 17 CPC, by virtue of which, para 4A has been allowed to be added, which admittedly has been unsuccessfully assailed by the defendant, and the said order has attained finality. The learned trial Court has framed the additional issues. After closure of the evidence of the plaintiff, the application has been moved.

¶38

Admittedly, whatsoever has been mentioned in

¶39

the application, is based upon the development, which

¶40

7 2026:HHC:39537

¶41

has taken place, during the pendency of the lis. If the facts and circumstances of the case, in the light of a decision of Coordinate Bench of this Court in Civil Revision No. 99 of 2023, titled as, ‘Om Prakash versus Jarnail Singh @ Ricky & ors.’, decided on 2.5.2024, are seen, then, the learned trial Court has fallen into error, in dismissing the application under Order 26 Rule 9 CPC. Relevant paragraph-12 of the judgment is reproduced as under:

¶42

“Thus, one of the ways prescribed for settlement of boundary dispute is by appointing Local Commission. It, however, does not mean that the Court is bound to issue commission in every case of boundary dispute, merely, on the asking of a party. In exercise of jurisdiction under Order 26 Rule 9 of the Code of Civil Procedure, the Court has to see the bonafides of the party asking for appointment of commission. In assessing the bonafides one of the parameters can be to see whether the party applying for appointment of commission to demarcate the land had sufficient opportunity to avail the remedy under Section 107 of the H.P. Land Revenue Act. It will be relevant for The reason that the procedure prescribed under H.P. Land Revenue Act, for demarcation requires considerable time. The order passed Revenue Officer by the on completion of demarcation proceeding is amenable to appeal and further revision under H.P. Land Revenue Act. In case when the alleged encroachment on one's

¶43

8 2026:HHC:39537

¶44

land precedes the filing of the suit, plaintiff may not have reason to file the suit without firstly ascertaining the nature and extent encroachment, if any, by resorting to the remedy available under Section 107 of the H.P. Land Revenue Act. However, if the encroachment is alleged to have taken place after filing of the suit, as in the case in hand, different parameters will apply. In such a situation, in case the party is to get demarcation under Section 107 of H.P. Land Revenue Act, the probable time likely to be taken in such proceedings, may defeat the purpose of filing civil suit as the proceedings in civil suit shall come to a stand still to accommodate plaintiff or for that matter a party seeking demarcation to avail remedy under aforesaid provisions of H.P. Land Revenue Act.”

¶45

So far as delay in moving the application is

¶46

concerned, the other party can be compensated in terms of the cost, as once the amendment has been made and additional issues have been framed, then, at least opportunity to prove the case, should have been given to the plaintiff.

¶47

With these observations, the present petition is allowed, subject to cost of Rs. 10,000/- to be paid to the defendants. Consequently, order dated 18.4.2022, passed by the learned trial Court is set aside.

¶48

9 2026:HHC:39537

¶49

Considering the fact that the lis is pending before the learned trial Court, since the year 2012, the learned trial Court is requested to decide the matter, on or before 31.12.2026.

¶50

The parties, through their counsel, are directed to appear before the learned trial Court, on 29.9.2026.

¶51

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application.

¶52

The pending application(s), if any, are also disposed of.

¶53

15.9.2026 Kalpana

¶54

(Virender Singh) Judge

Janak Raj v. Atma Ram Deceased through Lrd Parveen

Case brief

What is this about?

What did the court decide?

Janak Raj v. Atma Ram Deceased through Lrd Parveen

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases