Purushottam Mishra & others vs State of M.P.

This petition filed under Article 227 of the Constitution takes exception to order dated 5.4.2016 passed in RCS No.1047-A/14 passed by 11th Civil Judge, Class-II, Bhopal whereby application filed by the petitioner/ plaintiff under Order 26 Rule 9 of the CPC is dismissed by the court below.

Briefly stated, the facts are that the petitioner filed a suit for permanent injunction and demolition. The suit was permitted to be amended and para-6-A was permitted to be inserted. On the strength of this amendment and in view of the stand of other side, the plaintiff filed an application under Order 26 Rule 9 of the CPC (Annexure P/4) by contending that the defendants have made certain illegal construction and have subjected the suit property to encroachment. There is no agreed map between the parties. Hence, a Commission may be appointed to give report about correct position of the suit property. The said application was opposed by the other side. The court below by order dated 5.4.2016, rejected the said application by holding that the power under Order 26 Rule 9 of the CPC cannot be used to collect the evidence. The petitioner can lead evidence and establish his case.

Criticizing this order Shri Ankit Saxena, learned counsel for the petitioner submits that the court below has given a finding that the matter is relating to illegal construction and encroachment. In absence of any agreed map, the court below should have allowed the said application. He relied on certain judgments in support of his contention.

Shri Satyam Agarwal, counsel for the respondents, opposed the same by contending that the court below has passed a justifiable order and there is no legal flaw in the said order. He submits that Commission cannot be appointed to investigate the fact as to which party is in possession of the property. Reliance is placed on the judgment of this Court in the case of Ashutosh Dubey Vs. Tilak Grih Nirman Sahkari Samiti and another-2004(3) MPLJ-213.

No other point is pressed by learned counsel for the parties.

I have heard learned counsel for the parties at length and perused the record.

The plaintiff, by way of amendment categorically pleaded that after receiving the notices of the suit, the defendants continued with the illegal construction. The illegal construction is required to be removed. The Municipal Corporation also issued notices to the defendants for removing the illegal construction. The said encroachment is required to be removed. The court below, in the impugned order, mentioned that the original dispute is relating to encroachment. However, the prayer of the petitioner is not accepted on the sole ground that under Order 26 Rule 9 of the CPC, Commission cannot be appointed to collect the evidence. This Court in the case of Anil Kumar Sharma, Kamal Singh and another Vs. Roop Singh and another-2011(3) MPHT 528 opined that in absence of agreed map between the parties, the controversy should be resolved by the trial court by issuing Commission. In the case of Beejanwala Talukdar Vs. Radha Krishna Rai-2012(3) MPWN-168, this court opined that the issue of encroachment, in the absence of agreed map should be resolved by appointing the Commission. This judgment is based on the Division Bench judgment of this court in the case of Durga Prasad Vs. Parveen Foujdar and others-1975 JLJ 440. The court also relied on the case of Haryana Waqf Board and others Vs. Shanti Samp and others-(2008) 8 SCC 67). The same view is taken by this court in Heeralal Vs. Thakur Das- 2003(3) MPHT-347.

In this view of the matter, I find substance in the argument of the petitioner that in the facts and circumstances of this case, the court below should have exercised the power under Order 26 Rule 9 of the CPC. So far the judgment of Ashutosh Dubey (supra) is concerned, a plain reading of the order shows that in the said case the application preferred under Order 26 Rule 9 of the CPC was earlier rejected by the trial court on merits. Thereafter, similar application was entertained and allowed. This court came to hold that there was no occasion for the trial court for reconsideration of the said application on similar facts. In the peculiar facts of that case, this court opined that the direction to issue Commission was not justifiable. The judgment of Ashutosh Dubey (supra), for the reasons stated above, cannot be applied in the present case.

As analyzed above, the court below has erred in rejecting the application filed under Order 26 Rule 9 of the CPC. Resultantly, the order dated 05.04.2016, to the extent it relates to rejection of the said application is set aside. The application filed under Order 26 Rule 9 of the CPC (Annexure P/4), is allowed. The court below is directed to appoint a Commissioner to undertake the aforesaid exercise and obtain the report.

Petition is allowed. No cost.