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Madhya Pradesh High Court · body

2017 DIGILAW 223 (MP)

Sundar Devi v. Bajrang Lal Verma

2017-02-10

S.A.DHARMADHIKARI

body2017
ORDER 1. Heard learned counsel for the parties. 2. This review petition under Order 47 rule 1 of CPC arising out of order dated 6.12.2016 passed in Writ Petition No.1247/2016, whereby, the respondent herein had challenged the order dated 16.1.2016 passed in Civil Suit No.8-A/2015 by 2nd Civil Judge, Class-II, Gwalior (M.P.) by which the application under Order 26 rule 9 of CPC was rejected by the learned trial Court. 3. The Writ Petition No.1247/2016 was heard finally with the consent of both the parties on 6.12.2016 and was allowed on the ground that the dispute in the suit pertains to encroachment and the same cannot be decided without appointment of a Commission relying on the Judgment of this Court delivered in the case of Durga Prasad v. Praveen Foujdar and others, reported in 1975 JLJ 440 =1972 MPLJ 801. The impugned order dated 16.1.2016 was set aside and the application under Order 26 rule 9 of CPC filed by the respondent herein was allowed. 4. The review petitioners herein have filed the present review petition on the ground that the suit filed by the plaintiff was for declaration, permanent injunction, eviction and recovery of rent and the same was not with regard to encroachment of the agricultural land which requires appointment of Commission. It is further submitted that application under Order 26 rule 9 of CPC was moved with the object of collecting evidence. It is further submitted that this Court has allowed the petition without assigning any reason for reversal of the order, therefore, prima facie apparent mistake on the face of record has crept in. It is further argued that it is settled law that the Commission cannot be appointed for collecting evidence. This Court has held that the dispute in the suit pertains to encroachment and the same cannot be decided without appointment of a Commission. Bare perusal of the pleadings made in the application under Order 26 rule 9 of CPC and the reply thereto clearly reveals that the matter is not with regard to encroachment. 5. On the other hand, learned counsel for the respondent vehemently opposed the prayer of the petitioners seeking review of the order dated 6.12.2016 passed in Writ Petition No.1247/2016 and submitted that the view taken by this Court is correct and the review petition deserves to be dismissed. 6. 5. On the other hand, learned counsel for the respondent vehemently opposed the prayer of the petitioners seeking review of the order dated 6.12.2016 passed in Writ Petition No.1247/2016 and submitted that the view taken by this Court is correct and the review petition deserves to be dismissed. 6. Admittedly, on bare perusal of the order dated 6.12.2016, it can be seen that due to inadvertence the contentions of both the parties could not be recorded in detail. Even on perusal of the application and reply, nowhere it is mentioned that the matter relates to encroachment. The object of Order 26 rule 9 of CPC is not to collect the evidence which can be taken in the Court but to obtain the evidence for elucidating the matter which due to its peculiar nature, can only be had on the spot. It is well settled law that Commission cannot be issued to collect the evidence. 7. In view of above, conclusion can be drawn that apparent error has crept in while passing the order dated 6.12.2016, wherein, reasons could not be recorded due to inadvertence, therefore, in these circumstances, the review petition deserves to be allowed. 8. Accordingly, this review petition is allowed and the order dated 6.12.2016 passed in Writ Petition No.1247/2016 is hereby recalled. 9. Registry is directed to list Writ Petition No.1247/2016 for rehearing before appropriate Bench.