1985 Supreme(MP) 143

G. G. Sohani, J.
Municipal Council Maodsaur v. Dargah Hakkashah.
S. A. No. 385 of 1974 (I); Decided On 22-2-1985.

Headnote:Civil P. C.,1908-O.26. R. 9-commission for spot inspection--should be applied at earliest stage of suit-all evidence adduced during trial-appointment becomes unnecessary.

        This is defendants second appeal arising out of a suit for grant of injunction restraining the defendant from demolishing Chabutara adjoining Durgah. The plaintiffs case was that the disputed Chabutara was a part of Durgah and hence, the defendant Municir:al had no right to demolish the said Chabutara on the ground that it constituted an encroachment on the public road. The suit was resisted by the defendant Municipal Council, which contended that the disputed Chabutara was not a part of the Durgah but was a part of the public road. The learned trial Judge, after carefully appreciating the evidence on record, found that the disputed Chabutara was a part of the Dnrgah and not a part of public road, as contended by the defendant Municipal Council. The trial Court, therefore, decreed the Plaintiffs suit. On appeal, the judgment and decree passed by the trial Court were upheld. Hence, the defendant has filed this second appeal.

       

        Held: The only contention raised on behalf of the appellant was that the trial Court erred in dismissing the application for appointment of a Commissioner under order 26, rule 9 CPC submitted by the defendant. Reliance was placed on the decision in Durga Prasad v. Parveen Foujdar & others 11975 JLJ 440).

       

        In the instant case, the application for appointment of a Commissioner was given by the defendant after the parties we re directed to adduce evidence. The trial Court rejected that application bat permitted the defendant to produce all necessary evidence to prove encroachment. Evidence was accordingly produced by the defendant and it is not the grievance of the defendant that it was not allowed to produce evidence. The decision in 1975 JLJ 440 (Supra) cannot be construed to mean that a decision on the question of encroachment would be rendered illegal if a Commissioner was not appointed by the Court under order 26, rule 9 CPC to ascertain the fact of encroachment. The appointment of a Commissioner would undoubtedly have been desirable if an application to that effect had been made at the earliest stage but the defendant having adduced all evidence which it wanted to adduce, cannot make a grievance that failure to appoint a Commissioner bas vitiated the decision of the trial Court. 1975 JLJ 440 distinguished. Appeal dismissed.