GWALIOR; dated 15.02.2021.

Shri D.D.Bansal, counsel for the petitioner.

Shri Mahendra Kumar Sharma, counsel for the respondents.

With the consent of parties, the matter is heard finally.

Present petition has been filed under Article 227 of the Constitution of India challenging the order dated 20.3.2019 passed in Civil Suit No.71-A of 2018 by V Civil Judge, Class II, Vidisha whereby, the application under Order 26 Rule 9 of CPC for appointment of Commissioner even prior to deciding the application under Order 39 Rule 1 and 2 of CPC, has been allowed.

The plaintiff/petitioner claiming himself to be owner and in possession of the house ad-measuring 1779 sqft. (165.334) sq.mt. situated in Old Ward No.30 Near Railway Station Vidisha has instituted a suit for permanent injunction and prayed that the defendants be restrained from making any interference in title and possession of the house and further be restrained from dismantling the house alleging it to be encroachment over the land of the railway. Along with plaint an application under Order 39 Rule 1 and 2 of CPC has been filed seeking injunction against the defendants. The respondents filed written statement and reply to the application under Order 39 Rule 1 and 2 of CPC and the case is at the stage of deciding the application under Order

39 Rule 1 and 2 of CPC.

The defendants have filed an application under under Order 26 rule 9 of CPC for demarcation of the disputed property contending that in that the upon making survey by agency of Union Govt. encroachment of plaintiff has been found over 124.7875 sqmt and from the middle point of the down main line upto 250 ft, the land of railway has been earmarked. It is submitted that no document mentioned in the application has been filed on record before the learned trial court. The learned trial court after hearing arguments of both the parties rejected the application holding that the application has been filed for collection of evidence which is not permissible. Even the case is at the stage of consideration of the application under Order 39 Rule 1 and 2 of CPC therefore, no such application should have been entertained. He has relied upon the judgment passed by this court in the case of Ashok Kumar Patel and Others Vs. Ram Niranjan and Others, reported in 2007 (III) MPWN 123, wherein, it is clearly held that at the stage of consideration of application under under Order 39 Rule 1 and 2 of CPC for injunction, the application under Order 26 Rule 9 of CPC for commission generally should not have been entertained. He has further relied upon the judgment passed in the case of Rahees Khan and Others Vs. Pradeep and Others reported in 2016 RN 239 and Shivkumar Sharma and Others Vs. Sukhdev Lal and Others reported in 2016 RN 347 and has argued that as per section 45 of the Evidence Act, the expert opinion cannot be collected at an early stage as the civil suit is still at the stage of consideration of application under Order 39 Rule 1 and 2 of CPC, the same will amount to collection of evidence which is not permissible by filing an application under order 26 Rule 9 of CPC. It is submitted that the learned trial court has not considered the aforesaid aspect and has allowed the application against which, present petition has been filed. It is argued that as per the settled legal proposition of law with respect to consideration of the application under Order 26 Rule 9 of CPC, it is settled position that the same cannot be considered for collection of evidence. In such circumstances, the trial court has committed an error in allowing the application.

Per contra, counsel appearing for the respondents has supported the impugned order and has submitted that the trial court has rightly considered the application and has allowed the same as survey was got conducted by the Union of India wherein, it was found that the plaintiff had encroached upon the 124.7875 Sqft property of the railways and the property from down main line to 250 Sqft belongs to the ra