IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA th ON THE 5 OF JULY, 2023 MISC. PETITION No. 1116 of 2022 BETWEEN:-

CHANDRA KUMAR JAIN S/O KANCHEDILAL JAIN PANAR BHATTA WALI, AGED ABOUT 50 YEARS, OCCUPATION: BUSINESS SHOPKEEPER NEAR MARDHANPUR LALBAHADUR SHASTRI WARD SAGAR TEHSIL AND DISTRICT SAGAR (MADHYA PRADESH)

.....PETITIONER (BY SHRI MOHAMMAD AADIL USMANI - ADVOCATE)

AND

1. ARVIND KUMAR S/O LATE BAULAL JAIN, AGED ABOUT 47 YEARS, OCCUPATION: SHOPKEEPER SURKHI TEHSIL AND DISTRICT SAGAR (MADHYA PRADESH)

2. MAHESH KUMAR S/O LATE BABULAL JAIN, AGED ABOUT 47 YEARS, OCCUPATION: SHOPKEEPER R/O SURKHI, TEHSIL AND DISTRICT- SAGAR, (MADHYA PRADESH)

3. THE STATE OF MADHYA PRADESH THROUGH COLLECCTOR DISTRICT- SAGAR, (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI RAJENDRA KUMAR RAGHUWANSHI - ADVOCATE FOR RESPONDENT NO.1)

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

ORDER

This petition under Article 227 of the Constitution has been filed against the order dated 14.02.2022 (Annexure-P/9) passed by Sixth Civil Judge, Senior Signature Not Verified Signed by: PRARTHANA Division Sagar in RCSA No. A/280/2017 by which the application filed by the respondents/plaintiffs under Order 26 Rule 9 CPC has been allowed.

2. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that the respondents/plaintiffs have filed the suit for declaration of title and permanent injunction. An application under Order 26 Rule 9 CPC was filed for appointment of Commissioner for the verification of actual situation on the disputed plots. The said application was rejected by the trial Court vide order dated 03.11.2018 on the ground that the Commissioner cannot be appointed for collecting evidence and suit has been filed for declaration of title and permanent injunction.

3. It is an undisputed fact that the order dated 03.11.2018 was never put to challenge.

4. Thereafter another application for the similar relief was filed on 21.01.2022 and the trial Court has allowed the said application by impugned order dated

14.02.2022 by holding that the lis appears to be of boundaries dispute.

5. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner and it is well establish principle of law that res judicata applies to the interlocutory orders also. Once a similar application was already rejected by the court below vide order dated 03.11.2018, then without making any reference of the said order, the trial Court should not have allowed the subsequent petition filed for similar relief.

6. Per contra, counsel for the respondent No.1 has submitted that the subsequent application was maintainable because it was filed at the stage of final argument.

7. Heard the learned counsels for the parties.

8. The Hon'ble Supreme Court in the case of S. Ramachandra Rao Vs. S.

Signature Not Verified Signed by: PRARTHANA Nagabhushana Rao and others decided on 19.10.2022 in Civil Appeal Nos.7691-7694 of 2022 has held as under:-

"10. For what has been noticed and discussed in the preceding paragraphs, it remains hardly a matter of doubt that the doctrine of res judicata is fundamental to every well regulated system of jurisprudence, for being founded on the consideration of public policy that a judicial decision must be accepted as correct and that no person should be vexed twice with the same kind of litigation. This doctrine of res judicata is attracted not only in separate subsequent proceedings but also at the subsequent stage of the same proceedings. Moreover, a binding decision cannot lightly be ignored and even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue, if rendered by a Court of competent jurisdiction. Such a binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine of res judicata.

10.1. In true