O26 R9 CPC Application May Be Allowed Where Disputed Facts Can't Be Ascertained Sans Local Inspection, Can't Take Hyper Technical View: Chhattisgarh HC

The observation came from Justice Rakesh Mohan Pandey while setting aside an order passed by Additional District Judge, rejecting the Petitioner's application for local inspection to ascertain the extent of encroachment over a drainage path.

The ADJ had said that the plaintiff has to prove its case on its own and it cannot collect evidence through the court.

The High Court however observed,

"Basic purpose to exercise power under Order 26 Rule 9 of C.P.C. is to separate the wheat from chaff and in cases where it is necessary to elucidate the relevant facts, the Court can exercise its powers. It must be remembered that the procedural law is made to advance the cause of justice and not to strangulate the litigant on hyper technical grounds. In Order 26 Rule 9 of C.P.C. the word used is - "elucidate" and its meaning as per Websters Dictionary is "to make light or clear, to explain, to remove obscurity from and render intelligible, to illustrate." According to Chambers Dictionary, "elucidate" means to make lucid or clear or to throw light upon, to illustrate, making clear, explanatory."

It was of the view said that under Order 26 Rule 9 CPC, the court itself can exercise the power or in order to elucidate the disputed fact, and on the question of encroachment and location/identification of land on an application filed by the parties. More so when there is no agreed map between the parties, the Municipal Corporation or Municipal Council or Panchayat can enter into dispute and decide the same by placing correct position of the parties.

"In view of the disputed facts which in my opinion cannot be ascertained without local inspection or without making local investigation and further considering the judgments passed by the various High Courts and the Hon'ble Supreme Court, the learned trial Court ought to have allowed the application moved by the plaintiff/petitioner under Order 26 Rule 9 of C.P.C." it said.

In view of the above, the petition was allowed.

Case Title: Phoolchand Asra Versus Nagar Palika Nigam Raipur and Ors.

Citation: 2022 LiveLaw (Chh) 62 

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