Madhya Pradesh High Court
Akhil Johri vs Ramesh Chand Chourasiya on 12 November, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:28870
1 MP-2021-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 12 th OF NOVEMBER, 2025
MISC. PETITION No. 2021 of 2025
AKHIL JOHRI AND OTHERS
Versus
RAMESH CHAND CHOURASIYA AND OTHERS
Appearance:
Shri Manish Chandra Shrivastav - Advocate for the petitioners/appellants.
ORDER
The present petition under Article 227 of the Constitution of India has been
preferred by the petitioners/appellants being aggrieved by the order dated
24.03.2025 passed in Cr.A. No. 569/2024 by the Court of First District Judge,
Gwalior (M.P.), whereby the learned First Appellate Court rejected the application
filed by the petitioners/appellants under Order XXVI Rule 9 of the Code of Civil
Procedure, 1908 (for short, "CPC").
2. In brief, the facts giving rise to the present petition are that the
respondents filed an application under Section 133 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) before the Trial Court, alleging that both parties are
residents of Jasoos Mahal, Chawri Bazar, Lashkar, Gwalior. It was pleaded that
the main pathway from Chawri Bazar Road leading to the residences of both
parties passes through Jasoos Mahal, which is a public way, used by both parties
and other local residents for more than seventy years.
3. It was further alleged that the respondents were attempting to close and
encroach upon the said public way. The petitioners made a written complaint
against such encroachment. Subsequently, the respondents approached the Trial
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Court by filing an application under Section 133 Cr.P.C., which came to be
allowed.
4. Aggrieved thereby, the petitioners preferred an appeal before the First
Appellate Court, which is still pending. During pendency of the said appeal, the
petitioners filed an application under Order XXVI Rule 9 CPC, seeking local
investigation to ascertain the factual position on the spot. However, the said
application was rejected by the First Appellate Court by the impugned order dated
24.03.2025.
5. Learned counsel for the petitioners contends that the learned First
Appellate Court has committed a jurisdictional error in deciding the interlocutory
application under Order XXVI Rule 9 CPC during pendency of the appeal. It is
urged that the First Appellate Court ought to have considered such an application
at the time of final hearing of the appeal, in light of the settled law laid down by
the Hon'ble Supreme Court in Union of India v. Ibrahim Uddin & Another, (2012)
8 SCC 148. Therefore, it is prayed that the impugned order be set aside and the
Appellate Court be directed to decide the said application along with the final
appeal.
6. Looking to the nature of the case, issuance of notice to the respondents is
not considered necessary.
7. Heard learned counsel for the petitioners and perused the documents
placed on record.
8. It is undisputed that the appeal filed by the petitioners is still pending
before the First Appellate Court. It is also evident that the Appellate Court has
decided the application under Order XXVI Rule 9 CPC prior to the final
adjudication of the appeal.
9. In Union of India v. Ibrahim Uddin & Another (Supra ), the Hon'ble
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Supreme Court held as under:
"An application for taking additional evidence or conducting a local
investigation in an appeal should ordinarily be considered at the time of hearing of
the appeal on merits. The appellate court must form its opinion on the basis of the
evidence already available on record, and only if it finds that additional evidence
is necessary for pronouncing judgment, such application may be allowed." (Ref:
paras 52, 53 & 85.7)
10. In view of the aforesaid settled legal position, it is apparent that the
learned First Appellate Court erred in rejecting the application under Order XXVI
Rule 9 CPC at an interlocutory stage, instead of considering it at the time of final
hearing of the appeal on merits.
11. Consequently, the impugned order dated 24.03.2025 passed in Cr.A. No.
569/2024 by the Court of First District Judge, Gwalior (M.P.) is hereby set aside.
The First Appellate Court is directed to consider and decide the petitioners'
application under Order XXVI Rule 9 CPC at the time of final hearing of the
appeal on its merits, in accordance with law.
12. With the aforesaid observation and direction, this miscellaneous petition
stands disposed of. No order as to costs.
(HIRDESH)
JUDGE
Prachi
