IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE RAJENDRA KUMAR-IV th ON THE 19 OF MARCH, 2024 MISC. PETITION No. 629 of 2023 BETWEEN:-

JAGDISH KEBRE S/O SHRI KISHORI LAL KEBRE, AGED ABOUT 56 YEARS, OCCUPATION: BUSINESS, R/O NEAR BAKRA MANDI GENDE WALI SADAK, LASHKAR, DISTRICT GWALIOR (MADHYA PRADESH)

.....PETITIONER (SHRI RAM KRISHNA SONI - ADVOCATE FOR PETITIONER)

AND

1. SMT. RAMKALI MAHOR W/O SHRI RAMDAYAL MAHOR, AGED ABOUT 52 YEARS, R/O GENDE WALI SADAK, BAKRA MANDI, NEAR KABIR ASHRAM, LASHKAR DISTRICT GWALIOR (MADHYA PRADESH)

2. COMMISSIONER, NAGAR PALIKA NIGAM GWALIOR THROUGH COMMISSIONER GWALIOR (MADHYA PRADESH)

3. ASHOK KEBRE S/O LATE SHRI KISHORI LAL KEBRE, R/O NEAR BAKRA MANDI GENDE WALI SADAK, LASHKAR DISTRICT GWALIOR M.P.

(MADHYA PRADESH)

.....RESPONDENTS (SHRI ASHOK JAIN - ADVOCATE FOR RESPONDENT NO.1)

(SHRI TAPENDRA SHARMA - ADVOCATE FOR RESPONDENT NO.2)

This petition coming on for hearing this day, the court passed the following:

ORDER

Petitioner filed present petition under Article 227 of Constitution of India challenging the order dated 30.11.2022 passed by 7th District Judge, Gwalior in Signature Not Verified Case No.489/2018 MJC titled as Smt. Ramkali Mahor Vs. Nagar Palika Nigam & Others, by which learned Court below allowed the application under Order

26 Rule 9 read with Section 151 CPC moved by plaintiff.

2. From the facts, it emerges that Smt. Ramkali filed an application under Section 307(5) of the Municipal Corporation Act to remove the illegal construction of defendant/petitioner which has been done without permission of Nagar Nigam. Application under Order 26 Rule 9 read with Section 151 CPC has been filed by applicant/respondent before Court below with a request that opposite party has illegally constructed a building at the spot/place by blocking Government drain without approval of Municipal Corporation, which is causing immense trouble to the residents by constructing building by defendant/petitioner. Defendant has diverted the drain towards locality, due to which diseases are spreading in the locality, about which applicant and other persons/people of locality have complained many times. Thus, applicant wants to get conducted spot inspection of said place so that true situation of spot can be clarified before the Court. Application was contested by defendant/petitioner by submitting that he has never made construction over the Government drain and house existed about 40 years before from the time of his father. Application is mala fide and it is moved to collect evidence.

3. Heard learned counsel for petitioner and respondents and perused the record.

4. Learned counsel for the petitioner submits that he did not make any construction over the Government drain and house of defendant/ petitioner is constructed from the time of his father before 40 years. Application under Order 26 Rule 9 was filed with mala fide intention in order to collect evidence which is not permissible in the eyes of law. Trial Court erred in allowing the Signature Not Verified application. Order is against law and is perverse.

5. Per contra, learned counsel for respondents submit that defendant/petitioner has constructed his house illegally at the spot by blocking Government drain without previous approval of Municipal Corporation. Trial Court rightly issued commission just to verify length, width and area of the construction and without issuing commission, Court cannot reach on the right conclusion.

6. Evidently, case has been filed by plaintiff/respondents before Lower Court under Section 307(5) of the Municipal Corporation Act to remove construction which has been made without permission of Municipal Corporation and application is filed by plaintiff/respondents to issue a commission for local investigation. Order 26 Rule 9 of CPC reads as under :-

"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 matt