Ajay Pathak vs Smt Vimla Devi
2023 Latest Caselaw 12132 MP

                                                          1
                          IN        THE   HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                               ON THE 31 st OF JULY, 2023
                                            MISC. PETITION No. 3987 of 2023

                         BETWEEN:-
                         AJAY PATHAK S/O SHRI SHESH NARAYAN PATHAK,
                         AGED ABOUT 45 YEARS, OCCUPATION: BUSINESS R/O
                         COLLEGE COLONY, WARD NO 2, DHANPURI, VINEETA
                         JAISWAL KE MAKAAN KE PECHE, THANA AND TEYHSIL
                         BUDHAR, DISTRICT SHAHDOL (MADHYA PRADESH)

                                                                                      .....PETITIONER
                         (BY SHRI SUSHEEL KUMAR TRIPATHI - ADVOCATE)

                         AND
                         SMT VIMLA DEVI W/O SUKHDEV RAI, AGED ABOUT 83
                         YEAR S , OCCUPATION: HOUSEWIFE R/O DHANPURI
                         WARD NO 2, THANA AND TEHSIL BUDHAR, DISTRICT
                         SHAHDOL (MADHYA PRADESH)

                                                                                     .....RESPONDENT


                               This petition coming on for admission this day, th e court passed the
                         following:
                                                           ORDER

This Miscellaneous Petition is filed by the Tenant/Defendant being aggrieved of order dated 10.5.2023 passed by 1st Civil Judge Senior Division Budhar, District Shahdol in R.C.S No.99A/2021 on the ground that the application for appointment of Commissioner cannot be allowed to collect evident.

Reliance is placed by learned counsel for the petitioner on the judgment of this Court in Ashok Kumar Patel & Others versus Ram Niranjan & Signature Not Verified Signed by: AMIT JAIN Signing time:

7/31/2023 7:19:30 PM

Others 2007 (III) M.P.W.N 123 wherein it is held the Commissioner cannot be appointed to collect evidence as to the nature of the suit filed and possession thereupon. Reading Paragraph Nos.7&8 of Ashok Kumar Patel & Others versus Ram Niranjan & Others (supra), prayer is made to set aside the impugned order.

I have heard learned counsel for the petitioner. It has come on record that evidence of the parties is over. The dispute is that Plaintiff Smt.Vimla Devi claimed that the present petitioner is her tenant and, therefore, a suit for eviction has been filed whereas present petitioner submits that he is infact tenant of one Smt.Vinita Jaiswal, whose house is

constructed on Survey No.395/1/2/15 and the Plaintiff's Survey Number is 398/1A/2.

The issue, which is in dispute, is as to whether the plaintiff is tenant of Smt.Vinita Jaiswal or the tenant of the present petitioner. The Commissioner has been appointed to ascertain as to in which property the present petitioner is residing. The order passed by a Coordinate Bench of this Court in Ashok Kumar Patel & Others versus Ram Niranjan & Others (supra) is to the effect that while deciding an application under Order XXXIX Rule 1&2 of the Code of Civil Procedure, 1908, the Court cannot order for appointment of a Commissioner to collect evidence. The judgment of Ashok Kumar Patel & Others versus Ram Niranjan & Others (supra) has no application to the facts of the present case. In the present case, that stage is over. It has come in the impugned order and not disputed by learned counsel for the petitioner that evidence of the parties is over.

In view of the aforesaid, to determine the real controversy, the appointment of the Commissioner, i.e.Tahsildar Budhar, District Shahdol to Signature Not Verified Signed by: AMIT JAIN Signing time:

7/31/2023 7:19:30 PM

give a report as to in whose house the petitioner/defendant is residing, cannot be said to be illegal or arbitrary calling for any interference in supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

Accordingly, this Miscellaneous Petition fails and is dismissed.

(VIVEK AGARWAL) JUDGE amit

Signature Not Verified Signed by: AMIT JAIN Signing time:

7/31/2023 7:19:30 PM