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Judgment
Paramjeet Singh, J.—Instant revision petition has been filed for quashing the order dated 30.1.2013 passed by learned Civil Judge (Junior Division), Ludhiana, whereby application moved by the petitioner/plaintiff for appointment of Local Commissioner has been dismissed. I have heard learned counsel for the parties and perused the record.
At the outset, learned counsel for the respondents stated that no party has led any evidence till date.
From the perusal of record, this Court finds that case was fixed for plaintiff's evidence on 29.7.2013. As per the statement of the learned counsel for the respondent/defendants no evidence has been led by the plaintiff till date.
Admittedly, petitioner/plaintiff moved an application for appointment of Local Commissioner to see the spot, which has rightly been rejected by learned trial court.
It is settled principle of law that he, who alleges, must prove initially that such and such things are in existence. This is not the duty of the court that it should appoint Local Commissioner and then identify which part has been encroached upon. The courts are not to help the plaintiff or the defendant for collecting evidence available for that purpose. It is duty of the parties to lead substantive evidence in that regard. However, when there is dispute regarding certain evidence and existence of some facts, only then court can appoint Local Commissioner. Here is a case where the petitioner wants that evidence should be collected for him by the court by appointing Local Commissioner, which cannot be allowed.
Hon'ble Supreme Court in Haryana Waqf Board Vs. Shanti Sarup and Others, has held that Local Commissioner can be appointed only to clarify the position of the existing state of affairs only after the evidence is led.
In view of the above, I do not find any illegality or perversity in the impugned order. Dismissed. However, if the Court at some stage finds that there is necessity to clarify the position, then parties will be at liberty to move an application for appointment of Local Commissioner and this order shall not operate as res judicata.