Gwalior Development Authority Thr. vs Mohan Singh

Supervisory jurisdiction of this Court under Article 227 of the Constitution is invoked to assail the interlocutory order dated 18.05.2018 passed by VIth Civil Judge Class II, Gwalior in case No.371-A/2018 allowing an application under Order 26 Rule 9 of CPC preferred by the plaintiff in a suit seeking declaration of title and permanent injunction.

Learned counsel for the petitioner is heard on the question of admission.

Learned counsel for the petitioner submits that the provision of Order 26 Rule 9 CPC can not be invoked for the purpose of adjudicating an application under Order 39 Rule 1 & 2 CPC. It is submitted that during pendency of application under Order 39 Rule 1 & 2 CPC, the trial Court attempted to procure evidence which is impermissible in view of decision of coordinate bench of this Court in the case of Ashok Kumar Patel And Ors. vs Ram Niranjan Dubey And Ors reported in 2007(3) MPHT 419. The relevant portion of which is reproduced below for ready reference and convenience;

"8. In view of the aforesaid facts and circumstances, the order of the Trial Court appointing the Commissioner to ascertain the facts that who is in possession of the suit land, who is raising construction and on which part is beyond the scope of its jurisdiction. The parties had already filed affidavits and relevant documents on the basis of which the Court itself was required to decide the application filed under Order 39 Rules 1 and 2 of the CPC and record its finding instead of 4. shifAftering the jobhearingtotheCommissionerlearned." counsel for the petitioner/defendant, this Court is of the considered view that the order impugned herein does not reflect that the appointment of commission for carrying out inspection of suit property by allowing application under Order 26 Rule 9 was for purpose of adjudication of the pending application for temporary injunction under Order 39 Rule 1-2 CPC.

The trial Court has wide discretion under Order 26 Rule 9 CPC to appoint commission for the purposes mentioned in the said provision and also "for the purpose of elucidating any matter in dispute". The expression "for thee purpose of elucidating any matter in dispute" renders discretion available to the trial Court very wide to be exercised in the manner which the trial Court thinks fit, provided the power is not exercised for collecting evidence as held by the single Bench of this Court in the case of Ashutosh Dubey and Another Vs. Tilak Grih Nirman Sahkari Samiti and Another reported in 2004 (3) MPLJ 213

The perusal of the impugned order under challenge herein, reflects that the issue raised by the said application under Order 26 Rule 9 CPC of the plaintiff was allowed to enable the Court to visualize the true picture as to whether the counter claim of the rival parties regarding construction of boundary wall on which particular survey number can be assertained with some amount of accuracy so that the dispute involved in the suit can be adjudicated upon, in an effectice manner.

The impugned order does not reveal that any attempt on the part of the learned trial judge is made to collect evidence for the purpose of prayer for temporary injunction.

The sole intention of the trial Court seems to be of elucidating the matter in dispute and therefore, the learned trial Judge has not travelled beyond its jurisdictional limit set by law and therefore, no interference is called for in the limited supervisory jurisdiction of this Court.

Consequently, the present petition deserves to be and is hereby dismissed.