Mukesh Soni vs Sailendra Jain
2022 Latest Caselaw 13402 MP

                                                              1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT JABALPUR
                                                           BEFORE
                                         HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                   ON THE 12th OF OCTOBER, 2022

                                               MISC. PETITION No. 449 of 2017

                                   BETWEEN:-
                                   MUKESH SONI S/O SURYAPRAKASH SONI,
                                   AGED ABOUT 30 YEARS, OCCUPATION: LABOUR
                                   R/O RINGEWADA LAXMIPURA WARD SAGAR,
                                   TEHSIL AND     DISTT. SAGAR    (MADHYA
                                   PRADESH)

                                                                                           .....PETITIONER
                                   (BY SHRI MOHD. RIYAZ - ADVOCATE)

                                   AND
                           1.      SAILENDRA JAIN S/O SHRI MOTILAL JAIN,
                                   AGED ABOUT 41 YEARS, R/O NEAR BALAJI
                                   MANDIR AMBEDKAR WARD DHARAMSHREE
                                   RAJOA ROAD TEHSIL AND DISTT. SAGAR
                                   (MADHYA PRADESH)

                           2.      STATE OF M.P. THROUGH COLLECTOR SAGAR
                                   SAGAR (MADHYA PRADESH)

                                                                                        .....RESPONDENTS
                                   (NONE FOR RESPONDENT NO.2. MS PRASHANSA BAIS, PANEL
                                   LAWYER FOR RESPONDENT NO.2.)

                                 T h is petition coming on for order this day, t h e cou rt passed the
                           following:
                                                               ORDER

This miscellaneous petition has been preferred by the plaintiff/ petitioner against the order dated 20.09.2017 (Annexure P-1) passed by the Second Civil Judge Class-I, Sagar, whereby, the learned court below has dismissed the application filed by the plaintiff under Order 26 Rule 10(2) and (3) of the CPC.

During the course of arguments, learned counsel for the petitioner

Signature Not Verified Signed by: MANOJ KUMAR LALWANI Signing time: 10/14/2022 1:00:23 PM

submits that prior to dismissal of the said application under order 26 Rule 10(2) and (3) of CPC, the plaintiff has already cross-examined the Commissioner with regard to the Commissioner Report. By placing reliance on the judgment in the case of Jagdish Prasad Vs. State of M.P. and another 2009(2) MPHT 459(DB), learned counsel for the petitioner submits that the Commissioner has not carried out the inspection in accordance with the ratio of this judgment.

Heard learned counsel for the petitioner and perused the record. As in the present case after making spot inspection, the petitioner has already examined the Commissioner with regard to Commissioner Report, therefore, nothing remains to be decided in the present petition and the

objection raised by the petitioner by way of an application under Order 26 Rule 10(2) and (3) of the CPC shall be considered by the trial court at the time of final adjudication of the matter as has been held in the case of Shamandas and others Vs. Smt. Annapurna Choubey and others reported in ILR 2004 MP

With the aforesaid observation, this miscellaneous petition is disposed of with a direction to the learned trial court to consider the objection of the petitioner at the time of final adjudication of the matter without being influenced by the impugned order dated 20.09.2017 (Annexure P-1).

However, no order as to costs.

(DWARKA DHISH BANSAL) JUDGE MKL

Signature Not Verified Signed by: MANOJ KUMAR LALWANI Signing time: 10/14/2022 1:00:23 PM