Smt. Sapna vs Indore Municipal Corporation
2021 Latest Caselaw 391 MP

      :1:                                           M.P.No.3417-2020


 THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE


     S.B.: HON'BLE SHIR JUSTICE SUBODH ABHYANKAR
                   Miscellaneous Petition No. 3417/2020
                     Smt. Sapna w/o Shri Sunil Sojatia
                                        vs.
                   Indore Municipal Corporation, Indore
-----------------------------------------------------------------------------------
Shri Vishal Baheti, learned counsel for the petitioner.
Shri Shashank Shrivastava, learned counsel for respondents.

                                   ORDER

Passed on 02/03/2021

The petitioner has filed the present petition under Article 227

of the Constitution of India, assailing the order dated 27.11.2020

passed by the 28th Additional District Judge in RCSA No.727/2020,

whereby the learned Judge , on his own appointed a local commission

to inspect the property in question and to submit a report to any

Engineer of the Indore Development Authority.

2. Brief facts of the case are that the petitioner/plaintiff has filed

a civil suit for declaration and permanent injunction against the

respondents/Indore Municipal Corporation on the ground that the

petitioner is the owner of the property in question and purchased

through a registered sale deed and for construction of the building on

the said land, a permission was also granted to the petitioner by the

respondents on 18.1.2019, however, the same was revoked by the

respondent No.2 vide order dated 14.10.2020. The said order has been :2: M.P.No.3417-2020

challenged by filing the civil suit and declaration is sought that the

order is null and void with further relief of permanent injunction

restraining the respondents from interfering with the construction

raised by the petitioner.

3. In the aforesaid civil suit, an application under Order 39 Rule

1 & 2 read with Section 151 of the CPC was also filed for seeking

temporary injunction. Reply to the said application was also filed by

the respondents and the learned Judge of the trial Court, on

27.11.2020, after hearing of both the parties on the said application

reserved for orders. However, by the impugned on 27.11.2020 instead

of passing any order on the said application for temporary injunction,

the learned Judge suo moto appointed a local commissioner to inspect

the property in question and to submit a report to the Engineer of the

Indore Development Authority.

4. Learned counsel for the petitioner has submitted before this

Court that the learned Judge of the lower court has exceeded its

jurisdiction by passing the impugned order in the absence of any such

prayer made by the parties. It is further submitted that the learned

Judge himself has directed that the evidence to be collected through

local commissioner which in itself is impermissible under law.

5. In support of his contention, Shri Baheti has also relied upon

the recent order dated 8.7.2020 passed by the Co-ordinate Bench of

this Court in M.P. No.2406/2019 (Smt. Teena Pandey and another

vs. Dr. Krinesh Pandey), wherein after relying on various other :3: M.P.No.3417-2020

decisions, this Court has held that the powers under Order 26 Rule 9

of the CPC cannot be invoked to collect the evidence.

6. Learned counsel for the respondents has opposed the prayer

and submitted that there is no illegality committed by the learned

Judge of the trial court in passing the impugned order. It is further

submitted that the learned Judge of the trial Court has in its discretion

deemed it fit to call for the commissioner's report to put an end to the

controversy involved which can also be used by both the parties. Thus,

it is submitted that no interference is called for and the petition is

liable to be dismissed.

7. I have heard the counsel for the parties and also perused the

record.

8. So far as the scope of Order 26 Rule 9 of the CPC is

concerned, the Co-ordinate Bench of this Court has taken note of the

said provision itself as also the decisions governing the law in this

behalf. The relevant paragraph 7 to 15 of the order passed in the case

of Smt. Teena Pandey (supra) reads as follows:-

7. The provisions of Order XXVI Rule 9 of the CPC are very clear and for the ready reference the same is reproduced below :-

"9. Commissions to make local investigations.-- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court :

Provided that, where the State Government has made rules as to the person to whom such :4: M.P.No.3417-2020

commission shall be issued, the Court shall be bound by such rules."

8. It is clear from the above that during pendency of the trial and before the judgment if the Trial Court finds that any issue requires clarification or elucidation, the Court may suomoto appoint Commissioner to submit the report for which no application is required.

9. The scope of Order 26 Rule 9 of the CPC is very limited. The Trial Court in any suit in which a local investigation is required or proper for purpose of elucidating any matter of dispute may appoint a Commissioner. It is settled law that the parties are required to prove their own case by way of evidence, therefore, it is the duty of plaintiff/defendant to first give evidence in support of their case. After the evidence of parties, if Court deem it proper that any issue is requires clarification then the Court may appoint a Commissioner. The report of Commissioner is merely a piece of evidence and not binding on the Trial Court. It can be used for the purpose of appreciating the evidence came on record.

10. The Hon'ble Supreme Court has also considered the scope of Order XXVI Rule 9 and held that the provision of Order XXVI Rule 9 is to be invoked if the controversy is regarding demarcation of the land between the parties.

11. The Hon'ble Supreme Court in the matter of Haryana WAQF Board v/s 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. Para 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. But the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected."

12. This Court in case of Durga Prasad v/s Parveen Foujdar, reported in (1975) MPLJ 810 has also considered the scope of Order XXVI 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 :

:5: M.P.No.3417-2020

"25. Point No.2: In cases where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be 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 15.09.1966 the plaintiff, accordingly, applied for the issue of a commission to the Director of Land Records for a theodolite survey of the plaintiff's leasehold area."

13. Again this Court has taken similar view in case of Jaswant S/o Kashi Ram Yadav v/s 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 sale 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 committed the same error by not allowing the said 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."

14. In view of the law laid down in the above judgments,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.

15. In the present case, the plaintiff is alleging that defendant :6: M.P.No.3417-2020

no.1 is raising construction contrary to the sanctioned map. No such material has been produced in support of his submissions. It is settled law that the plaintiff is required to prove his case by giving evidence. He can not invoke the provisions of Order 26 Rule 9 of the CPC for collection of evidence. He has filed an application under the Provisions of Order 26 Rule 9 of CPC seeking report to the effect that the defendant no.1 is raising construction as per the map or not. This allegation is liable to be proved by the plaintiff by way of evidence. This is nothing but misuse of Order 26 Rule 9 of CPC which is not permissible in law. The trial Court has wrongly allowed the application, therefore, the petition stands allowed and the impugned order dated 24.01.2019 passed by the trial Court, is set aside hereby.

(emphasis supplied)

9. In the said case also the dispute was in respect of raising

illegal construction on the disputed land and the trial court, after

hearing the application filed under Order 39 Rule 1 & 2 of the CPC

appointed an Engineer of the Municipal Corporation as a

commissioner for submitting a report after inspection of the site

whether the defendant No.1 is raising the construction contrary to the

sanctioned map or not. Thus, the facts of the present case are identical

to that of the decisions relied upon by the learned counsel for the

petitioner in the case of Smt. Teena Pandey (supra) as in the present

case also the learned Judge of the trial Court has passed the impugned

order with a view to ascertain the extent of encroachment and the

construction which according to the respondent is not in accordance

with the sanctioned map.

10. It is true that under Order 26 Rule 9, trial court has the

inherent power to appoint a commission on its own but that exercise

has to be undertaken only in cases where the dispute is regarding the

demarcation of the property but it cannot be equated with a dispute :7: M.P.No.3417-2020

regarding illegal construction in violation of the sanctioned map. In

view of the same, the aforesaid exercise initiated by the learned Judge

of the Trial Court is apparently to collect the evidence for the parties

which is barred under Order 26 Rule 9 of the CPC as has been

enunciated by the Supreme Court as also by this Court as aforesaid.

11. In view of the same, the impugned order passed by the

learned trial judge cannot be countenanced as having passed in excess

of its jurisdiction.

12. Resultantly, the present petition stands allowed and the

impugned order dated 27.11.2020 is hereby set aside. It is further

directed that the learned Judge of the lower Court shall pass an order

on the application filed by the petitioner under Order 39 Rule 1 & 2 of

the CPC as expeditiously as possible.

(Subodh Abhyankar) Judge moni

Digitally signed by Moni Raju Date: 2021.03.02 17:40:52 +05'30' :8: M.P.No.3417-2020

THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE

M.P.No.3417-2020 (Smt.Sapna w/o Shri Sunil Sojatia vs. State of M.P. and others)

Indore, Dated: 8.2.2021 Heard through Video Conferencing.

Shri Vishal Baheti, learned counsel for the petitioner. Shri Shashank Shrivastava, learned Panel Lawyer for the respondents/Indore Municipal Corporation.

Arguments heard.

Reserved for orders.

(Subodh Abhyankar) Judge

Indore, Dated : 02.03.2021

Order passed, signed and dated.

(Subodh Abhyankar) Judge

moni