The discretionary nature of relief under Order 26 Rule 9 of CPC and the limited scope for entertaining a petition under Article 227 of the Constitution of India.

JUDGMENT :

Vishal Mishra, J.

1. With the consent of parties, the matter is heard finally.

2. Present petition has been filed under Article 227 of the Constitution of India challenging the order dated 22.9.2020 passed in Case No. RCS 65-A/2019 by III Civil Judge, Class II, Vidisha whereby, the learned trial court without there being any prayer of any of the parties in the suit has ordered for appointment of Commissioner even prior to commencement of evidence of the plaintiff.

3. The plaintiff/petitioner claiming himself to be owner and in possession of the house ad-measuring 600 sqft situated in Sherpura Mohalla, Near Railway Station Vidisha has instituted a suit for permanent injunction and prayed that the defendants be restrained from making any interference in title and possession of the house and further be restrained from dismantling the house alleging it to be encroachment over the land of the railway. Along with plaint an application under Order 39 Rule 1 and 2 of CPC has been filed which upon oral submissions of the counsel for the defendants, was not pressed by the plaintiffs. The respondents filed written statement and reply to the application under Order 39 Rule 1 and 2 of CPC and thereafter they remained ex parte till the stage of decision on application under Order 11 Rule 12 read with Section 151 of CPC.

4. On 5.8.2019, plaintiff has filed an application under Order 11 Rule 12 read with Section 151 of CPC alongwith document of the possession of the plaintiff under intimation to the defendants but they remained ex parte and did not file reply, therefore, their right to file reply was closed on 16.10.2019 and the application was allowed on 6.11.2019 whereby, the defendants were directed to produce the documents relating to their ownership. Thereafter the defendants moved an application for setting aside ex parte proceedings which was opposed by the plaintiff by filing reply on 7.9.2020 but ultimately, vide order dated 12.9.2020 the application was allowed. Thereafter the defendants again started proceedings of dispossession by issuance of fresh notice, therefore, the plaintiff moved an application under Section 151 of CPC with prayer for a direction to the parties to maintain status quo to which reply was filed by the defendants but ultimately, the same was allowed and parties were directed to maintain status quo. But at the same time without there being any prayer also ordered for appointment of commissioner at the cost of plaintiff vide impugned order, hence, this petition has been filed. He has relied upon the judgment passed by this court in the case of Ashok Kumar Patel and Others Vs. Ram Niranjan and Others, reported in 2007 (III) MPWN 123, wherein, it is clearly held that at the stage of consideration of application under Order 39 Rule 1 and 2 of CPC for injunction, the application under Order 26 Rule 9 of CPC for commission generally should not have been entertained. He has further relied upon the judgment passed in the case of Rahees Khan and Others Vs. Pradeep and Others reported in 2016 RN 239 and Shivkumar Sharma and Others Vs. Sukhdev Lal and Others reported in 2016 RN 347 and has argued that as per section 45 of the Evidence Act, the expert opinion cannot be collected at an early stage as the civil suit is still at the stage of consideration of application under Order 39 Rule 1 and 2 of CPC, the same will amount to collection of evidence which is not permissible. It is submitted that the learned trial court has not considered the aforesaid aspect and has ordered for appointment of commissioner at the cost of plaintiff against which, present petition has been filed.

5. It is argued that as per the settled legal proposition of law with respect to consideration of the prayer for appointment of commission, the same cannot be considered for collection of evidence. In such circumstances, the trial court has committed an error in allowing the application.

6. Per contra, counsel appearing for the respondents has supp