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Madhya Pradesh High Court · body

2015 DIGILAW 777 (MP)

Ramesh Chand v. Usha Devi

2015-07-29

SUJOY PAUL

body2015
ORDER 1. This petition filed under Article 227 of the Constitution challenges the order dated 18.10.2011 passed in Case No.6/2010 whereby the application preferred by the petitioner/plaintiff under section 151 CPC was disallowed by the Court below. 2. Petitioner filed a suit for declaration and permanent injunction. The relief was related to Survey No.890. The respondents No.1 to 3 herein filed counter claim. In the counter claim, they prayed for a relief relating to Survey No.888, 889, 890 and 891/2. Thereafter, the plaintiff filed an application under Order 26 rule 9 CPC (Annexure P-5). In the said application, the petitioner prayed for demarcation of the land mentioned in the plaint. Another application under Order 26 rule 9 CPC was filed by respondents No.1 to 3 (Annexure P-4). In the said application, the respondents prayed for inspection of Survey No.888, 889, 890 and 891/2. The Court below by order dated 1.4.2010 (Annexure P-6) considered the aforesaid applications preferred under Order 26 rule 9 CPC by the plaintiff and defendants. The Court below in its detailed order directed that the report relating to Survey No.890 be produced. Thereafter, an application under section 151 CPC (Annexure P-7) was filed by the plaintiff on 14.7.2011. The defendants filed their reply and contended that in view of order dated 1.4.2010, it is not open to the plaintiff to file another application. The Court below by impugned order dated 18.10.2011 rejected the said application. 3. Shri D.D.Bansal, learned counsel for the petitioner criticized the said order. He submits that in view of plaint averments and counter claim, it is clear that there exists a boundary dispute. Accordingly, Court below should not have taken a mechanical and hyper technical approach. It was also the claim of the defendants that spot inspection report should be obtained in relation to Survey Nos.888, 889, 890 and 891/2. He submits that in order to examine the rival claims and to determine the boundary dispute, it was necessary for the Court below to issue appropriate orders for demarcation of the land in relation to all the survey numbers. He submits that this exercise is necessary to separate the wheat from chaff. Lastly, he submits that since it was the prayer made by the defendants in Annexure P-4, they have no right to object in relation to the relief claimed in applications preferred under section 151 CPC. He submits that this exercise is necessary to separate the wheat from chaff. Lastly, he submits that since it was the prayer made by the defendants in Annexure P-4, they have no right to object in relation to the relief claimed in applications preferred under section 151 CPC. To bolster the aforesaid, he relied on 1983 MPWN 218 (Chunnilal v. Sunderlal), 1988 MPWN(II) 23 (Hari Charan v. Ghanshyam Das), 1996 (1) MPWN 7 (Kiriti Bai (Smt.) v. Amrit) and 2006 RN 218 (DB) (Gajraj Singh v. Ram Singh and others). 4. Shri A.V. Bharadwaj, learned counsel for the respondents, on the other hand, supported the order passed by the Court below. He submits that the Court below after considering the applications preferred by the plaintiff and the defendants passed a detailed order on 1.4.2010. The said order is not put to test by any of the parties. Thus, it has attained finality. In absence of challenge to the said order, it was neither open to the plaintiff to claim the relief in Annexure P-7, nor it was open to the Court below to pass order beyond what has been passed on 1.4.2010. He further submits that the plaintiff has filed the said application Annexure P-7 after about 14-15 months. There is no jurisdictional error which warrants interference by this Court. 5. No other point is pressed by learned counsel for the parties. 6. I have heard the learned counsel for the parties and perused the record. 7. In view of admitted facts, it is clear that the applications preferred under Order 26 rule 9, CPC by plaintiff and defendants were decided by the Court below on 1.4.2010. The Court below found that demarcation to a limited extent is necessary. The order dated 1.4.2010, in absence of any further challenge, has attained finality. The basic question is whether after decision of applications under Order 26 rule 9 preferred by the parties, it was open for the present petitioner to file another application under section 151 CPC, seeking demarcation of same lands, which has been earlier rejected. In my opinion, this is impermissible. This is settled in law that a thing which cannot be granted directly cannot be permitted to be granted or achieved indirectly. Once applications under Order 26 rule 9 CPC are decided and prayer of other side seeking demarcation of Survey Nos. In my opinion, this is impermissible. This is settled in law that a thing which cannot be granted directly cannot be permitted to be granted or achieved indirectly. Once applications under Order 26 rule 9 CPC are decided and prayer of other side seeking demarcation of Survey Nos. 888, 889, 890 and 891/2 is disallowed, the same cannot be done under the garb of exercise of power flowing from section 151 CPC. Thus, I find no flaw in the order of Court below. The judgments cited by Shri Bansal are relating to those cases where Courts have exercised original power under Order 26 rule 9 CPC. In those cases, this additional fact was not available where such applications under Order 26 rule 9 CPC have already been decided and same relief was prayed by filing another application under section 151 CPC. This is trite that inherent powers under section 151 CPC cannot be used to override express provisions of CPC like Order 26 rule 9. [See, AIR 1964 SC 993 (Arjun Singh v. Mohindra Kumar and others) [ (2008)9 SCC 648 ], (Durgesh Sharma v. Jayshree) [ (2008) 2 SCC 488 ], (State of Uttar Pradesh and others v. Roshan Singh) and [ (2011)11 SCC 275 (K. K.Velusamy v. N. Palanisamy]. 8. There is no jurisdictional flaw in the order impugned. The order cannot be said to be illegal or bad in law. Resultantly, petition fails and is hereby dismissed. No cost.