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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
GURPAL SINGH AHLUWALIA, J.
Gorelal Lodhi S/o Pyarelal Lodhi - Appellant
Versus
The State of Madhya Pradesh - Respondent
Misc. Petition No. 5356 of 2023
Decided On : 20-11-2023
ORDER :
1. This petition under Article 227 of the Constitution of India has been filed against the order dated 26.08.2023 passed by Civil Judge, Junior Division, Kesli, District Sagar in RCSA No.3/2019, by which an application filed under Order 26 Rule 9 of CPC has been rejected.
2. It is submitted by counsel for the petitioner that the petitioner has filed a suit for declaration of title and permanent injunction. Since the respondents are disputing the existence of a house which is 100 years old, therefore, the petitioner filed an application under Order 26 Rule 9 of CPC for appointment of local commissioner to submit a report with regard to existence of the house.
3. The Trial Court by the impugned order has rejected the application mainly on the ground that local commissioner cannot be appointed for collection of evidence. It is submitted that since the respondents have denied existence of the house, therefore, appointment of commissioner is necessary. Whatever a report will be submitted by the commissioner cannot be termed as evidence and thus, the Trial Court has committed a material illegality by rejecting the application filed under Order 26 Rule 9 of CPC.
4. Per contra, counsel for the State has supported the findings recorded by the court below.
5. Heard counsel for the parties.
6. In the application filed under Order 26 Rule 9 of CPC the petitioner has pleaded as under :-
3- ;g fd] çfroknhx.k us vius tokcnkok esa cknh ds mä edku ds vfLrRo ds laca/k eas badkj fd;k gS fd ,slh fLFkfr esa ;g vko';d gks x;k gS fd oknh vius edku dk LFky fujh{k.k djkos rkdh oknxzLr edku dh fLFkfr Li"V gks ldsA oknxzLr edku dk LFky fujh{k.k jktLo vf/kdkjh ;k fdlh vf/koäk ds ek/;e ls djk;k tkuk U;k;fgr esa vko';d gSA
7. Thus, it is clear that solitary contention of the petitioner is to seek appointment of local commissioner to verify existence and condition of the house. This certainly amounts to collection of evidence. The petitioner by leading evidence can always prove his claim. The Court cannot delegate its jurisdiction to a local commissioner to adjudicate the disputed questions of facts.
8. Under these circumstances, this Court is of the considered opinion that the Trial Court did not commit any error by rejecting the application filed under Order 26 Rule 9 of CPC. As no jurisdictional error was committed by the Trial Court, therefore, the petition fails and is hereby dismissed.
AI
The court affirmed that a local commissioner cannot be appointed for collecting evidence as it improperly delegates judicial authority, which violates the principles of adjudication.
The appointment of a local commissioner is inappropriate for evidence collection in disputes over property title, as it delegates judicial authority, which must remain with the court.
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 can....
An order refusing to appoint a local commissioner does not decide any issues or rights in a suit and is therefore non-revisable.
The central legal point established in the judgment is that the appointment of a Commissioner for local investigation should only be done for convenience and after considering the evidence produced b....
The possession of the petitioner over the suit land was not in dispute, and the age of apple plants would not prove actual possession, leading to the dismissal of the application for appointment of a....
A plaintiff cannot seek a Local Commissioner to gather evidence if there is no substantial basis for such request, particularly when the burden of proof lies with them regarding ownership claims.
The central legal point established in the judgment is the non-maintainability of the revision petition under Article 227 of the Constitution, as reiterated from the law laid down in Pritam Singh's c....
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