The main legal point established in the judgment is that the appointment of a commissioner under Order 26 Rule 9 of the CPC is limited to cases where demarcation of the property is in dispute and cannot be used to collect evidence for parties.

ORDER :

Subodh Abhyankar, J.

1. The petitioner has filed the present petition under Article 227 of the Constitution of India, assailing the order dated 27.11.2020 passed by the 28th Additional District Judge in RCSA No. 727/2020, whereby the learned Judge, on his own appointed a local commission to inspect the property in question and to submit a report to any Engineer of the Indore Development Authority.

2. Brief facts of the case are that the petitioner/plaintiff has filed a civil suit for declaration and permanent injunction against the respondents/Indore Municipal Corporation on the ground that the petitioner is the owner of the property in question and purchased through a registered sale deed and for construction of the building on the said land, a permission was also granted to the petitioner by the respondents on 18.1.2019, however, the same was revoked by the respondent No. 2 vide order dated 14.10.2020. The said order has been challenged by filing the civil suit and declaration is sought that the order is null and void with further relief of permanent injunction restraining the respondents from interfering with the construction raised by the petitioner.

3. In the aforesaid civil suit, an application under Order 39 Rule 1 & 2 read with Section 151 of the CPC was also filed for seeking temporary injunction. Reply to the said application was also filed by the respondents and the learned Judge of the trial Court, on 27.11.2020, after hearing of both the parties on the said application reserved for orders. However, by the impugned on 27.11.2020 instead of passing any order on the said application for temporary injunction, the learned Judge suo moto appointed a local commissioner to inspect the property in question and to submit a report to the Engineer of the Indore Development Authority.

4. Learned counsel for the petitioner has submitted before this Court that the learned Judge of the lower court has exceeded its jurisdiction by passing the impugned order in the absence of any such prayer made by the parties. It is further submitted that the learned Judge himself has directed that the evidence to be collected through local commissioner which in itself is impermissible under law.

5. In support of his contention, Shri Baheti has also relied upon the recent order dated 8.7.2020 passed by the Co-ordinate Bench of this Court in M.P. No. 2406/2019 (Smt. Teena Pandey and another vs. Dr. Krinesh Pandey), wherein after relying on various other decisions, this Court has held that the powers under Order 26 Rule 9 of the CPC cannot be invoked to collect the evidence.

6. Learned counsel for the respondents has opposed the prayer and submitted that there is no illegality committed by the learned Judge of the trial court in passing the impugned order. It is further submitted that the learned Judge of the trial Court has in its discretion deemed it fit to call for the commissioner's report to put an end to the controversy involved which can also be used by both the parties. Thus, it is submitted that no interference is called for and the petition is liable to be dismissed.

7. I have heard the counsel for the parties and also perused the record.

8. So far as the scope of Order 26 Rule 9 of the CPC is concerned, the Co-ordinate Bench of this Court has taken note of the said provision itself as also the decisions governing the law in this behalf. The relevant paragraph 7 to 15 of the order passed in the case of Smt. Teena Pandey (supra) reads as follows:-

7. The provisions of Order XXVI Rule 9 of the CPC are very clear and for the ready reference the same is reproduced below:-

"9. Commissions to make local investigations.--In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directi