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J 2018 SCCr213 122450 1 2
J 2018 SCCr213 122450 1 2
J 2018 SCCr213 122450 1 2
On the basis of pleadings of the parties, issues were framed and evidence was also
led. It is a matter of record that it is at the stage of hearing that an application was
filed by the plaintiff under Order 26 Rules 9 and 10-A of the Civil Procedure Code.
8. Before proceeding further, it is relevant to take note of the fact that under Order
26 Rule 9 of the Civil Procedure Code, a Court can order local investigation in a suit, in
which the Court deems such investigation to be proper for the purpose of elucidating
any matter in dispute etc. Similarly, under the provisions of Rule 10-A of Order 26 of
the Civil Procedure Code, the Court, if it thinks it necessary or expedient in the interest
of justice, can issue a commission to such person as it thinks fit wherein question
arising in a suit involves in a scientific investigation, which in the opinion of the Court
cannot be conveniently conducted before the Court.
9. It is apparent from the language of the said statutory provision itself that before
ordering any investigation either under Rule 9 or Rule 10-A of Order 26 of the Civil
Procedure Code, the Court has to be satisfied that the same shall be necessary for the
purpose of adjudication. In other words, it is not a right conferred upon a party to call
upon the Court to order an investigation. On a request so made by a party if the Court
comes to the conclusion that it is expedient in the interest of justice that such
investigation be held only then the Court exercises powers conferred on it under Order
26 Rules 9 and 10-A of the Civil Procedure Code.
10. In my considered view, in the present case, but obvious, onus is on the plaintiff
to prove his case. It is not a case where either any scientific investigation is necessary
or, as has been held by the learned court below, the Court deems a local investigation
necessary for the purpose of elucidating in the matter in dispute. In fact, it has been
clearly stated by the learned trial Court in the order impunged that the Court cannot
be used as a tool to create evidence because it is for the parties to prove their case
and the parties cannot depend upon the Court to collect evidence for it.
11. It is pertinent to mention that the suit filed by the plaintiff/petitioner is to the
effect that plaintiff, defendant No. 1 and proforma defendants are joint owners in
possession of the suit land and that a decree of permanent injunction be passed
against defendants No. 1 and 1A against forcibly ousting the plaintiff and proforma
defendants from joint possession of the suit land.
12. Taking into consideration the dispute involved, it is but obvious that it is for the
plaintiff to prove his case and plaintiff cannot call upon the Court to order investigation
by appointing revenue expert to prepare excerpts and report history of the suit land,
as per pedigree table so as to create evidence in his favour.
13. In view of the reasonings given hereinabove, I do not find any perversity with
the order passed by the learned trial Court and thus, as there is no merit in the
present petition, it is accordingly dismissed. Pending applications, if any, also stand
disposed of.
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