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Madhya Pradesh High Court · body

2018 DIGILAW 296 (MP)

Gyanchand Ramrakhyani v. Navdeep Khera

2018-03-12

VIVEK RUSIA

body2018
ORDER 1. Heard on the question of admission. 2. The petitioners/defendants have filed the present petition being aggrieved by the order dated 16.2.2018 by which application filed by the plaintiff under Order 26 rule 9 of the CPC filed by the plaintiff has been allowed by the learned civil Court. 3. The plaintiff/respondent No. 1 filed the Civil Suit No. 264-A/2004 against mother, brother and sister for the relief of permanent injunction of 6.11.2004. Thereafter, the plaintiff filed another suit under section 307 (5) of M.P. Municipal Corporation Act, seeking removal of the illegal construction raised by defendants No. 2 to 4/present petitioners. During pendency of the plaint on 19.8.2009, the plaintiff moved an application under Order 26 rule 9 of the CPC for appointment of commission to make a local investigation. The defendants opposed the said application and vide order dated 15.12.2009, the learned trial Court has dismissed the application. Thereafter, suit proceeded and after framing of the issues plaintiff and defendants examined their witnesses and thereafter the case was fixed for final argument on 12.10.2017. On the date, the plaintiff again an application under Order 26 rule 9 of CPC for appointment of commission to make a local investigation. The defendant/present petitioners opposed the said application but the learned trial Court vide order dated 16.2.2008 has allowed the said application. Hence, present petition before this Court. 4. Shri S.C. Bagadiya, learned senior counsel appearing on behalf of the petitioners/defendants submitted that once the Court has already rejected the application vide order dated 5.12.2009 then the second application under the same provision is not maintainable and the same ought to have been rejected under the principle of res judicata. In support of his contention he has placed these judgments Satyadhyan Ghosal v. Deorajin Debi, [ AIR 1960 SC 941 ], Jagjeet Singh v. Bhopal Vikas Pradhikaran, [MPH 2005 10 41], Devendra Kumar Nayak and anr. v. Sudha Nayak (SMT) and ors, ILR (2015) M.P. 3176. 5. He further submitted that when all the parties has led their evidences, therefore, the learned trial Court ought to have decided the suit finally on merit itself. 6. The plaintiff filed the suit alleging that the defendants were granted permission to raise construction of 5 feet away from the plaintiff's house but they have raised the construction contrary to the sanctioned map and the same is liable to be demolished. 6. The plaintiff filed the suit alleging that the defendants were granted permission to raise construction of 5 feet away from the plaintiff's house but they have raised the construction contrary to the sanctioned map and the same is liable to be demolished. The plaintiff filed an application under Order 26 rule 9 of the CPC in the year 2009, which was rejected by the trial Court on the ground that the case is fixed for plaintiff's evidence and instead of giving evidence, he has filed an application for appointment of commission, therefore, he was directed to give the evidence and at this stage application cannot be decided. Relevant part is reproduced below : ^^izdj.k dk lE;d voyksdu] vuq'khyu fd;k x;kA izdj.k esa vkosnd }kjk e-iz- uxjikfydk fuxe fo/kku dh /kkjk 307¼5½ ds izLrqr vkosnu ds ckn vk;s tcko ds ckn fopkj.kh; iz'u fufeZr fd;k tk pqdk gS vkSj izdj.k izkFkhZ lk{; gsrq fu;e fd;k x;k gS ijarq mUgksaus lk{; nsus dh ctk; vkosnu is'k dj fn;kA blfy;s loZizFke ;g funsZ'k fn;k tkrk gS fd izkFkhZ viuk lk{; is'k djsA mudh lk{; ls gh fopkj.kh; iz'u fujkd`r gks tk,xsA blfy, vkns'k 26 fu- 9 o /kkjk 151 lh ih lh dk vkSfpR; bl izØe ij ugha gS blfy;s izkFkhZ dk vkosnu fujFkZd o lkjghu ikrs gq;s fujLr fd;k tkrk gSA** 7. Therefore, it is clear from the aforesaid order that the application was not rejected on merit but it was rejected as same was not filed at appropriate stage. The Order 26 rule 9 of CPC provides that : "In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidation any matter in dispute, or of ascertaining the market value, may issue a commission". The language of Order 26 rule 9 is very plain and simple, according to which, if any Court deems it proper to appoint a commission for the purpose of clarification of any issue in dispute, may appoint a commission, That any clarification requires only after the evidences are produced by both the parties. The parties in suit must prove their case by way of evidence and if the Court wants that any issue or matter in dispute requires any clarification or elucidation it may appoint a commission. The parties in suit must prove their case by way of evidence and if the Court wants that any issue or matter in dispute requires any clarification or elucidation it may appoint a commission. The plaintiffs and defendants have to stand on their lags as they have to prove their case by way of evidence and if thereafter any issue is required to be clarified then either of them may file an application or Court may suo moto appoint a commission". The important is that at which stage application under Order 26 rule 9 of CPC is required to be filed in the suit." 8. In the present case after completion of evidence, the plaintiff has again filed an application under Order 26 rule 9 of the CPC for appointment of commission. Now, the plaintiff has filed the application at appropriate stage. The law in respect of exercising the power under Order 26 rule 9 is well settled by the apex Court. 9. The Hon'ble Supreme Court has considered the scope of order 26 rule 9 and held that the provision of Order 26 rule 9 is to be invoked if the controversy is regarding demarcation of the land between the parties. 10. The Hon'ble Supreme Court in the matter of Haryana WAQF Board v. Shanti Sarup and ors., reported in (2008)8 SCC 671 , has held that if the controversy is regarding demarcation of the land between the parties, the Court should direct the investigation by appointing a legal Commission. Paras 4 and 5 of the aforesaid judgment is reproduced as under : 4. Admittedly, in this case, an application was filed under Order 26 rule 9 of the code of Civil Procedure which was rejected by the trial Court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the Court to direct the investigation by appointing a Local Commissioner under Order 26 rule 9, CPC. 5. The appellate Court found that the trial Court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per para 3 of the plaint. 5. The appellate Court found that the trial Court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per para 3 of the plaint. But the only controversy between the parties was regarding demarcation of this suit land because the land of the respondents was adjacent to the suit land the application for demarcation filed before the trial Court was wrongly rejected." 11. This Court in case of Durga Prasad v. Parveen Foujar, reported in 1975 JLJ 440 =(1975) MPLJ, 801 has also considered the scope of Order 26 rule 9 and held that the Court should order the appointment of Commission when there is a dispute of encroachment. Para 25 of the said judgment is reproduced as under : 25. Point No. 2: In case where there is a disp ute as to encroachment, the fact whether there is such an encroachment or not cannot determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26, rule 9 of the Code of Civil Procedure. On 15.9.1966 the plaintiff, accordingly, applied for the issue of a commission to the Director of Land Record for a theodolite survey of the plaintiff's leasehold area. 12. Again this Court has taken similar view in case of Jaswant s/o. Kashi Ram Yadav v. Deen Dayal, reported in (2011)2 MPLJ 576 , has held that duties of the Court to issue a commission by appointing an employee of revenue department to get the land in dispute demarcated and for which no application is required. Para 10 of the said judgment is reproduced as under : 10. "The moot question to be decided in this appeal is whether the property in question is of plaintiff or defendant. Both the parties are claiming ownership right on it. According to the plaintiff he purchased the land vide registered sale deed Ext-P-2 from Deen Dayal and the suit property is a piece of that land but according to the defendant it is part of the property which he purchased from Sudhir Shrivastava vide registered deed Ext-D-3. Both the parties are claiming ownership right on it. According to the plaintiff he purchased the land vide registered sale deed Ext-P-2 from Deen Dayal and the suit property is a piece of that land but according to the defendant it is part of the property which he purchased from Sudhir Shrivastava vide registered deed Ext-D-3. According to me, when there is dispute about demarcation of the property in question and its identity and both the parties are claiming it to be of their own on the basis of their document of title it was incumbent upon the Court itself to issue a commission by appointing an employee of revenue department not below the rank of Revenue Inspector to get it demarcated so that it can be identified. In the instant case my attention has been drawn by learned counsel for defendants to the application filed under Order XXVI, rule 9, Civil Procedure code but the same has been rejected at the time of the consideration of temporary injunction application. To me learned trial Court erred in substantial error of law in rejecting the said application. The learned first appellate Court has also application. Indeed, it was the duty of the Court itself to issue commission by appointing an employee of Revenue Department not below the rank of Revenue Inspector to get the land in dispute demarcated and for its identification no application is required for that purpose." 13. In view of the law laid down in the above judgments, it is settled law that the commission can be appointed only in case of demarcation and encroachment. The issue of possession is to be decided only on the basis of evidence." 14. Therefore, in view of the above the trial Court has not committed any error while allowing the application, trial Court has rightly exercise discretion which is not liable to be interfered in the writ petition under Article 227 of the Constitution of India. Accordingly the writ petition's dismissed.