[Cites 1, Cited by 0]
Madhya Pradesh High Court
Kosha Dhakad vs Baijnath Shukla on 9 January, 2026
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2026:MPHC-GWL:1096
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 9 th OF JANUARY, 2026
MISC. PETITION No. 63 of 2026
KOSHA DHAKAD
Versus
BAIJNATH SHUKLA
Appearance:
Shri Mahesh Goyal - Advocate for petitioner.
ORDER
This Miscellaneous Petition has been filed by the petitioner
challenging the legality and correctness of order dated 01-12-2025 passed by
the Second Additional Civil Judge, Class-I, Sabalgarh, District Morena in the
civil suit filed by respondent, Baiynath Shukla, i.e. RCSA No.111 of 2023,
for declaration, possession, and permanent injunction in relation to land
situated at Village Rithonia, Tehsil Kailaras, District Morena.
2. A few facts giving rise to present petition are that the
respondent/plaintiff filed a civil suit against petitioner/defendant for
declaration, possession, and permanent injunction concerning land at Village
Rithonia, Tehsil Kailaras, District Morena, claiming to be the owner and
possession holder of disputed land. The plaintiff alleged that he had carved
out several plots from Survey No.68 and sold them to various individuals.
Specifically, the plaintiff claimed that he sold a plot ad-measuring 25x45 feet
to Dinesh Kumar Sharma and Rajendra Prasad Sharma, who subsequently
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sold the land to the defendant/petitioner through a registered sale deed dated
15.03.2023. The plaintiff contended that on 01.07.2023, the defendant was
digging the land to lay a foundation and attempted to encroach upon land that
was not part of the property purchased by plaintiff. The plaintiff further
alleged that the defendant raised construction on the disputed land and
sought for declaration, permanent injunction, and possession of the land as
shown in the map attached to the plaint. In response, the petitioner denied
the allegations and denied that the plot of land was sold to Dinesh Kumar
Sharma and Rajendra Prasad Sharma. Instead, the petitioner claimed that the
plaintiff had sold two separate plots of 25x45 feet each, one to the petitioner
(through sale deed dated 15.03.2023) and the other to Pappan Yadav. The
trial Court had dismissed an earlier application filed by plaintiff under Order
26 Rule 9 of CPC on 26th April 2024, and the petitioner's counter-claim had
been considered. The plaintiff filed a Miscellaneous Petition (MP No. 2707
of 2024), which was also dismissed by this Court on 20th May 2024. On
11th November 2025, the plaintiff filed a fresh application under Order 26
Rule 9 of CPC seeking the appointment of a Commission to inspect the land.
The petitioner filed his reply to the application. However, the trial court
allowed the plaintiff's application and issued a Commission through its order
dated 01-12-2025, which is the subject-matter of the present petition.
3. It is contended on behalf of petitioner that the trial Court committed
an error in law by allowing the application under Order 26 Rule 9 of CPC.
The application for the appointment of a Commission had previously been
rejected by the trial Court on the same facts, and this rejection was confirmed
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by this Court in May 2024.There were no new facts or changed
circumstances that warranted the filing of another application for the
appointment of a Commission. Neither the trial Court nor the plaintiff
provided any explanation as to the changed circumstances that necessitated
the fresh application. The Trial Court failed to provide any reasons or
justifications for issuing the commission at the stage of passing judgment.
The petitioner submits that application under Order 26 Rule 9 of CPC after
final hearing is not maintainable and should not have been entertained at this
stage. Given the absence of a well-reasoned and speaking order, petitioner
prays that the matter be remanded to the trial Court with direction to pass a
fresh, reasoned, and speaking order while deciding the application under
Order 26 Rule 9 of CPC.
4. Looking to the nature of case, there is no need to issue notice to
other side.
5. After hearing the learned counsel for the petitioner and going
through the impugned order and documents on record, the Court finds merit
in the petitioner's arguments. The trial Court allowed the application under
Order 26 Rule 9 of CPC without assigning any reason for deviating from its
earlier rejection of the same application. Additionally, there is no indication
that any new facts or circumstances have arisen that would justify the re-
filing of such an application The trial Court's order is, therefore,
unsatisfactory in its reasoning and fails to provide a justifiable basis for its
decision. This Court is of the opinion that the matter needs to be
reconsidered by the trial Court, with due regard to the legal principles and
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without any arbitrariness.
6. In view of the above, the matter is remanded to the trial Court for a
fresh decision. The trial Court is directed to pass a well-reasoned and
speaking order on the application under Order 26 Rule 9 of CPC, after
considering the facts, law, and circumstances of the case.
7. Accordingly, the impugned order dated 01-12-2025 passed by
Second Additional Civil Judge, Class-I, Sabalgarh, District Morena, is
hereby set aside. The matter is remanded to the trial Court with a direction to
pass a fresh, well-reasoned, and speaking order while deciding the
application under Order 26 Rule 9 of CPC. The trial Court is instructed to
consider the relevant facts, legal provisions, and the absence of new
circumstances in the case before issuing any further orders. No order as to
costs.
(HIRDESH)
JUDGE
MKB
