- (1.) Challenge herein is to order dated 13.8.2014 [Annexure P/1] passed by learned Civil Judge [Junior Division] Amritsar whereby, application filed by the petitioners-plaintiffs under Order XXVI Rule 9 CPC has been dismissed.
(2.) Learned counsel for the petitioners contends that status position existing at the spot is to be ascertained by appointment of a Local Commissioner.
(3.) After going through the application for appointment of a Local Commissioner in the interface of copy of the plaint dated 31.5.2013 [Annexure P/2], it is clear that in fact, the petitioners-plaintiffs wanted to get the factum of possession ascertained at the spot. It is also important to note that since the application of the petitioners under Order XXXIX Rules 1 and 2 CPC based on alleged possession, is pending adjudication, application [Annexure P/4] for appointment of a Local Commissioner has been moved with a purpose to establish prima facie possession at the spot, for which the lower Court has rightly observed that appointment of Local Commissioner could be of no help. It would also amount to assigning duty of proving case on the stranger of the case, meaning thereby it is the duty of the parties to prove their case. Moreover, it would be delegation of essential functions of the court. The trial Court has rightly observed in the concluding paragraph as under:- " After hearing rival contentions from both side, I am of the considered view that the question of possession cannot be ascertained by appointment of Local Commissioner. It is for the parties to lead necessary evidence to establish possession. A commissioner cannot be appointed to report as to which of the party is in possession of the shop in dispute because it would amount to delegate the court to determine the controversy between parties. So application under consideration is hereby dismissed. For arguments on stay application to come up on 15.09.2014.";