THE HIGH COURT OF MADHYA PRADESH Writ Petition No.7417/2016 (Shiv Singh and others vs. Smt. Gitika Dubey)

Indore; dated 07.03.2018 Shri A.K. Shrivastava, learned counsel for the petitioners.

Shri N. Mehta, learned Dy. A.G. for the respondent/ State.

The petitioners/ defendants have filed the present petition against the order dated 201.10.2016 by which application under Order 65 of Evidence Act filed by the plaintiff has been allowed and application under Order 26 Rule 9 of C.P.C. filed by the defendants has been dismissed.

The respondent/ plaintiff filed a suit for permanent injunction and possession. According to the plaintiff the defendants have encroached over 3478 square feet area of land belonging to her. That alongwith plaint she filed a spot map also.

After receipt of notice defendants filed written statement as well as counter claim specifically denying the encroachment over the area in question. The defendants filed an application under Order 26 Rule 9 of C.P.C. seeking appointment of commission to inspect the area of encroachment. According to the defendants, the plaintiff has filed a map prepared by a private engineer, therefore area of encroachment be got measured by the revenue authority by way of commission. The aforesaid application was opposed by the plaintiff and the learned Court vide order dated 20.10.2016 has rejected the application filed under Order 26 Rule 9 of C.P.C.

Shri Shrivastava, learned counsel for the petitioner submitted that when there is dispute of encroachment boundries then appropriate remedy is only to appoint the commission and get the report. In support of his contention he has placed the judgment passed by this Court in case Ashok Parwat vs. Sudarshan and others 2016 (4) M.P.L.J.210.

Shri Mehta, learned counsel for the respondent opposing the prayer and submitted that the case is at the stage of evidence and parties are required to prove their case by way of evidence. Learned trial court has rightly rejected the application.

Order 26 Rule 9 provides that "In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value, may issue a commission. The language of Order 26 Rule 9 is very plain and simple, according to which, if any court deems it proper to appoint a commission for the purpose of clarification of any issue in dispute, may appoint a commission. That any clarification requires only after the evidences are produced by both the par- ties. The parties in suit must prove their case by way of evidence and if the court wants that any issue or matter in dispute requires any clarification or elucidation it may appoint a commission. In the present case the plaintiff as well as defendants have not given their evidences so far. They have to stand on their lags as they have to prove their case by way of evidence and if thereafter any issue is required to be clarified then they may file an application or court suo moto may appoint a commission, therefore, learned trial court has rightly rejected the application at this stage the commission cannot be appointed to collect the evidence, hence, no inteference is called for and petition is dismissed so far rejection of application under Order 22 Rule 9.

By the impugned order the learned trial court has allowed the application filed under Section 65 of the Evidence Act. The plaintiff has filed the certified copy of the Will executed by her father-in-law Kailash and pleaded that the original is not in her possession and she is also not aware that who is in possession of the original deed.

The aforesaid application opposed by the defendant on the ground that without issuing notice to the person in whose possession the original deed is there, the application under Section 65 of the Evidence Act cannot be allowed. The learned Trial Court has allowed the application, hence the petitioner has challenged the said order also.

Shri A.K. Shrivastava, learne