Madhya Pradesh High Court
Pradeep Kumar Jain vs Nasir Hussain on 21 April, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 21st OF APRIL, 2022
MISC. PETITION No. 1793 of 2022
Between:-
PRADEEP KUMAR JAIN S/O SHRI LEELADHAR
JAIN , AGED ABOUT 59 YEARS, OCCUPATION:
BUSINESS R/O HOUSE NO. 33 SONA HOUSE
KAJIPURA LANE BHOPAL, M.P. (MADHYA
PRADESH)
.....PETITIONER
(BY MS. SHOBHA MENON, SENIOR ADVOCATE WITH MS. ANCHAL
SARAF, ADVOCATE )
AND
NASIR HUSSAIN S/O LATE SARFARAZ HUSSAIN ,
AGED ABOUT 44 YEARS, R/O HOUSE NO. 105 NEAR
MASJID FARIDU KHAN CHOWKI IMAMBADA,
SAIFIYA COLLEGE ROAD BHOPAL, M.P. (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI S.S.YADAV, ADVOCATE FOR THE CAVEATOR)
T h is petition coming on for admission this day, the court passed the
following:
ORDER
With the consent of the parties, the matter is finally heard.
The present petition has been filed challenging the order dated 29.03.2022
(Annexure P/16) passed by the IIIr d Civil Judge, Senior Division, Bhopal (M.P.)
whereby, the application preferred by the petitioner/defendant under Order 26 Rule
9 read with Section 151 of the Code of Civil Procedure has been rejected.
It is submitted that the petitioner has been inducted as a tenant in the shop
premises in the year 1989 and is having a physical possession of the same. A
notice was issued to the petitioner on 20.09.2017 seeking eviction from the
disputed shop and also on enhanced monthly rent which was replied by the
petitioner categorically denying the contents of the notice. Petitioner has also
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claimed the excess amount of Rs.1,02,874/- which has been paid illegally to the
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respondent. It was also highlighted that the respondent has refused to accept the
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rent of the disputed shop from the month of September, 2017. Despite of the fact
that the same was tendered by the Bankers cheque. Civil suit for eviction of the
property was filed which is pending consideration. After notices being issued, the
written statement has been filed on 15.02.2018 making a specific averment in the
written statement that a part of the property was being purchased by the father of
the petitioner and in that the repairing and construction was also being done in the
tenanted premises. They have further denied the bonafied necessity as canvassed
by the respondent in the plaint. Disputed area in the plaint has also been objected
by the petitioner in the written statement. The petitioner thereafter preferred an
amendment application under Order 6 Rule 17 read with Section 151 of the CPC
on 27.08.2021 duly supported by an affidavit along with the application under
Order 8 Rule 1 (3) read with Section 151 of the C.P.C. along with the site map to
dispute the fact that the map which has been produced by the respondent along
with the plaint is different from the map which has been produced by the
petitioner/defendant. The aforesaid application was allowed and the map was taken
on record.
It is argued that there was a dispute with respect to the maps in question.
The property which has been shown is a different property. The aforesaid aspect
has to be ascertained by the learned trial court. The civil suit was at the stage of
recording of the evidence. Immediately thereafter, an application under Order 26
Rule 9 read with Section 151 of the CPC has been filed supported by an affidavit
seeking appointment of a Commissioner for local investigation to ascertain that the
map in question is correct and for actual location of the property in question. The
aforesaid application has been rejected by the learned Trial Court without even
considering the fact that the map which has been shown by the plaintiff since from
the issuance of the notice has been disputed by the defendants. The aforesaid
aspect was not considered by the learned trial court while rejecting the application.
The learned trial court has considered the fact that there is no dispute with respect
to the identity of the property in question and the appointment of a Commissioner
cannot be made for collection of evidence in the matter. It is submitted that the
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identity of the property, therefore, she has prayed for quashment of the impugned
order.
Per contra counsel appearing for the respondent/caveator has opposed the
contentions and has supported the order pointing out the fact that there is no
boundary dispute or there is no dispute with respect to the identity of the property.
He has drawn attention of this Court to the application filed under Order 8 Rule
1(3) read with Section 151 of the CPC for bringing the map on record and also the
map which has been filed along with the application and also the map which has
been filed along with the plaint by him and has argued that the boundaries which
are being shown in the map by the plaintiff are the same boundaries which are
being shown by the petitioner/defendant along with the map produced with the
application. The application which has been filed does not point out any difference
in the identification of the property. He has drawn attention of this Court to both
the maps and has read out all the boundaries which have been pointed out and has
argued that as there is no difference in the boundaries of both the maps therefore,
learned trial court has not committed any error in rejecting the application. The
provisions under Order 26 Rule 9 read with Section 151 of the CPC cannot be
utilized for collection of evidence as held in large number of cases and has prayed
for dismissal of the petition.
Heard the learned counsel for the parties and perused the record.
From the perusal of the record, it is not disputed that the civil suit for
eviction is pending consideration wherein along with the plaint and map pointing
out the dimension of the property has been filed. On filing a written statement, the
petitioner has denied all the allegations and subsequently he has filed an
application for amendment which was allowed along with the application under
Order 8 Rule 1(3) of the CPC for taking documents on record i.e. a map just to
dispute the fact that the property is not the same which is pointed out by the
plaintiff but the fact remains, that the dimension of both the properties which have
been shown in the map as well as the boundaries are identical that has been shown
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in both the maps i.e. one filed by the plaintiff and other filed by the defendant. The
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application filed under Order 26 Rule 9 of the CPC does not show what difference
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is there in the identity of the property. It is only mentioned that "sbu nksuksa uD'kkas esa
fHkUurk gksus ds dkj.k fLFkfr Li"V ugha gks ik jgh gSA" but on bare perusal of the boundaries
of the aforesaid maps, the same are identical in both the maps. The civil suit is at
the stage of plaintiff evidence.
It is a settled proposition of law that the appointment of the Commissioner
cannot be done for collection of the evidence. It is to be established by leading
cogent evidence by both the parties.
In such circumstances, there is no illegality committed by the learned trial
court in rejecting the application. A coordinate Bench of this Court in the case of
of Loknath Gautam vs. State of M.P. and others, 2018 SCC Online MP 600
has held as under:-
"20. In the considered opinion of this Court, '€˜for the purpose of elucidating
facts in respect of any matter in dispute'€™ means where the circumstances render it
expedient in the interest of justice to do so, the Court has power, which is discretionary in
nature, to appoint Commissioner for the purpose of ascertaining, to make it clear,
intelligible and '€˜to throw light upon the matter in issue'€™, means the main
dispute as well as the facts leading to the dispute. This course may be adopted after the
examination of the party or parties or suo motu."
The Hon'ble Supreme Court in the case of Haryana Waqf Board vs.
Shanti Sarup and others, (2008) 8 SCC 671 has considered the similar aspect
of the matter and has directed to demarcation of the property, which reads 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 of the 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 unauthorized possession in
respect of the suit land by them as per paragraph 3 of the plaint. But the only
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controversy between the parties was regarding demarcation of the suit land
because land of the respondents was adjacent to the suit land and the application
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for demarcation filed before the trial court was wrongly rejected.
6 . It is also not in dispute that even before the appellate court, the
appellant-Board had filed an application for appointment of a Local Commissioner
for demarcation of the suit land. In our view, this aspect of the matter was not at all
gone into by the High Court while dismissing the second appeal summarily. The
High Court ought to have considered whether in view of the nature of dispute and
in the facts of the present case, whether the Local Commissioner should be
appointed for the purpose of demarcation in respect of the suit land."
A Coordinate Bench of this Court in the case of Prembai vs. Ghanshaym
2010 (3) MPLJ 345 has gone to the extent that it is the duty of the Court to
appoint a Commissioner for ascertaining the land in question if there is no agreed
map between the parties and by placing reliance upon the judgment in the case of
Haryana Waqf Board (supra) has held as under:-
"12. On going through the pleadings of plaintiff made in para 2 of his plaint, this
Court finds that specifically it has been pleaded by him that adjoining to his plot there is an
open land and thereafter defendants' house is in existence. It has been rightly pointed out
by learned counsel for the appellants that the plaintiffs sale-deed (Ex. P/1) in which the
description of his plot has been mentioned, in it also has been so described that on the
northern side there is an open land and thereafter the house of Krishnagopal Mundra is in
existence and, therefore, since plaintiff's own case is that in between his plot and
defendants' house there is an open space, therefore, whether any cantilever is being
projected on the plaintiffs plot or not, this was required to be ascertained by appointing a
competent Commissioner by directing him to examine the spot and to give report as to
whether any projection of cantilever covers any portion of the plaintiff's property or not
and similarly whether the doors, windows and the drains are trying to be opened by the
defendants on the plaintiff's property or not. Since this has not been done, according to
me, the suit of plaintiff for injunction cannot be decreed. In this regard, the Division Bench
decision of Durga Prasad (supra) placed reliance by the learned counsel for the appellants
is quite relevant. There are two more decisions of Supreme Court on the point and they
are Shreepat v. Rajendra Prasad, 2000 (6) Supreme 389 and Haryana Waqf Board
v. Shanti Sarup, (2008) 8 SCC 671."
This petition under Article 227 of the Constitution of India having
supervisory jurisdiction and limited scope of interference as held by the Hon'ble
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Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shhankar
Patil reported in (2010) 8 SCC 329, wherein certain guidelines have been issued
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by the Supreme Court, which are as under:-
"T h e scope of interference under Article 227 of the
Constitution is limited. If order is shown to be passed by a Court
having no jurisdiction, it suffers from manifest procedural impropriety
or perversity, interference can be made. Interference is made to
ensure that Courts below act within the bounds of their authority.
Another view is possible, is not a ground for interference.
Interference can be made sparingly for the said purpose and not for
correcting error of facts and law in a routine manner."
In view of limited scope of interference under Article 227 of the Constitution
of India coupled with the fact that the order passed by learned Court below is just
and proper does not call for any interference in the present petition.
Petition sans merits and is accordingly dismissed.
(VISHAL MISHRA)
JUDGE
Sha
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