1. Heard on the question of admission.

2. The petitioners/defendants have filed the present petition being aggrieved by the order dated 16.2.2018 by which application filed by the plaintiff under Order 26 rule 9 of the CPC filed by the plaintiff has been allowed by the learned civil Court.

3. The plaintiff/respondent No. 1 filed the Civil Suit No. 264-A/2004 against mother, brother and sister for the relief of permanent injunction of 6.11.2004. Thereafter, the plaintiff filed another suit under section 307 (5) of M.P. Municipal Corporation Act, seeking removal of the illegal construction raised by defendants No. 2 to 4/present petitioners. During pendency of the plaint on 19.8.2009, the plaintiff moved an application under Order 26 rule 9 of the CPC for appointment of commission to make a local investigation. The defendants opposed the said application and vide order dated 15.12.2009, the learned trial Court has dismissed the application. Thereafter, suit proceeded and after framing of the issues plaintiff and defendants examined their witnesses and thereafter the case was fixed for final argument on 12.10.2017. On the date, the plaintiff again an application under Order 26 rule 9 of CPC for appointment of commission to make a local investigation. The defendant/present petitioners opposed the said application but the learned trial Court vide order dated 16.2.2008 has allowed the said application. Hence, present petition before this Court.

4. Shri S.C. Bagadiya, learned senior counsel appearing on behalf of the petitioners/defendants submitted that once the Court has already rejected the application vide order dated 5.12.2009 then the second application under the same provision is not maintainable and the same ought to have been rejected under the principle of res judicata. In support of his contention he has placed these judgments Satyadhyan Ghosal v. Deorajin Debi, [AIR 1960 SC 941], Jagjeet Singh v. Bhopal Vikas Pradhikaran, [MPH 2005 10 41], Devendra Kumar Nayak and anr. v. Sudha Nayak (SMT) and ors, ILR (2015) M.P. 3176.

5. He further submitted that when all the parties has led their evidences, therefore, the learned trial Court ought to have decided the suit finally on merit itself.

6. The plaintiff filed the suit alleging that the defendants were granted permission to raise construction of 5 feet away from the plaintiff's house but they have raised the construction contrary to the sanctioned map and the same is liable to be demolished. The plaintiff filed an application under Order 26 rule 9 of the CPC in the year 2009, which was rejected by the trial Court on the ground that the case is fixed for plaintiff's evidence and instead of giving evidence, he has filed an application for appointment of commission, therefore, he was directed to give the evidence and at this stage application cannot be decided. Relevant part is reproduced below :

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7. Therefore, it is clear from the aforesaid order that the application was not rejected on merit but it was rejected as same was not filed at appropriate stage. The Order 26 rule 9 of CPC provides that : "In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidation any matter in dispute, or of ascertaining the market value, may issue a commission". The language of Order 26 rule 9 is very plain and simple, according to which, if any Court deems it proper to appoint a commission for t