Madhya Pradesh High Court
Suresh Chandra Sharma vs Dinesh Pratap Singh on 20 January, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 20th OF JANUARY, 2025
MISC. PETITION No. 6649 of 2024
SURESH CHANDRA SHARMA AND OTHERS
Versus
DINESH PRATAP SINGH AND OTHERS
Appearance:
Shri Om Prakash Dwivedi - Advocate for the petitioners.
Shri Ruchir Jain - Advocate for respondents No. 1 & 2.
Shri Manasmani Verma - Government Advocate for respondents No. 3/State.
ORDER
This petition is filed by the defendant being aggrieved of order dated
11.11.2024 passed by learned 1st Civil Judge Junior Division Beohari
District Shahdol (M.P.) in RCSA No. 95 of 2024 allowing an application
under Order 26 Rule 9 CPC on the ground that when application under Order
39 Rule 1 & 2 CPC is pending at the behest of the plaintiff, then an
application under Order 26 Rule 9 CPC could not have been allowed because
that will facilitate the plaintiff to collect evidence and that is not the motive
and purpose of the provisions contained in Order 26 Rule 9 CPC.
Reliance is placed on the judgment of the Co-ordinate Bench of this
Court in the case of Ashutosh Dubey & another Vs. Tilak Grih Nirman
Sahkari Samiti Maryadit & another 2004 (3) MPLJ 213, wherein the Co-
ordinate Bench while relying on a decision in the case of Laxman Vs. Ram
Singh, Civil Revision No. 18 of 1982, decided on 24.02.1992 (1992 MPWN
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255) has held that it is settled law that no such commission may be issued for
collecting the evidence in the case. In view of the said fact, decided the case.
On the other hand Shri Ruchir Jain, learned counsel for respondent No.
1 & 2 places reliance of the decision of another Co-ordinate Bench in M.P.
No. 5361 of 2022 (Bhanwar Lal Vs. Shyam Lal & Ors.) decided on
14.03.2023 and judgment of this High Court in the case of Municipal
Council Mandsour Vs. Dargah Hakka Shaha 1985 MPWN 372.
After hearing learned counsel for the parties and going through the
record. It is evident and admitted that, application under Order 39 Rule 1 & 2
CPC at the behest of the plaintiff is still pending before the trial Court.
Dispute is that, as to whether the respondent/defendant has made
encroachment over the suit land or not. Certain allegations are made on the
defendant which have been rebutted by the defendant, when facts of this case
are taken into consideration, in view of the decision of the Co-ordinate
Bench in the case of Bhanwar Lal dated 14.03.2023 (Supra) , then it is
evident that the facts of that case as have been narrated in para-2 have no
application to the facts of the present case. The co-ordinate Bench has noted
as under:
"Before adducing the evidence, the plaintiff has filed an
application under Order 26 Rule 9 CPC seeking direction for
demarcation of the suit land bearing survey No.201/1/1 area 1.0120
Hectare through any revenue authorities. The application was opposed
by the defendants and the learned Court has dismissed the application
on the ground that the said provision cannot be invoked for the
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collection of the evidence hence, ........ ...."
Firstly on a reading of order 26 Rule 9 CPC, it is evident that, that
provision cannot be invoked to get demarcation of a property carried out.
Therefore, it appears that facts in hand before the Co-ordinate Bench at
Indore being different have not application to the facts and circumstances of
the present case.
As far as the decision of another Co-ordinate Bench in the case of
Municipal Council Mandsour is concerned, it is only observed that after
defendants have adduced evidence, there was no much substance in
appointing a Commission under Order 26 Rule 9 and appointment of the
Commissioner would undoubtedly being desirable if an application to that
effect have been made at the earliest stage but defendant have adduced all
evidence which it wanted to adduce, cannot make a grievance that failure to
appoint a commissioner has vitiated the decision of the trial Court. It has
distinguished 1975 JLJ 440 and dismissed the appeal.
In the present case, admittedly, that earlier stage cannot be said to be
the stage when application under Order 39 Rule 1 & 2 is pending at the
behest of the plaintiff. Ratio of the law in the case of Laxman Vs. Ram
Singh being crystal clear that no such commission may be issued for
collecting the evidence in the case, this Court is of the opinion that impugned
order having been passed oblivious of the correct facts of the case and also
the correct legal position deserves to be set-aside and is set-aside.
It is evident from the pleadings itself that, Provisions of Order 26 Rule
9 CPC have been invoked by the plaintiff with a view to collect evidence.
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Accordingly, this petition is allowed and disposed of.
Parties to bear their own cost.
Interim relief, if any, shall vacated.
(VIVEK AGARWAL)
JUDGE
AR
