IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 6 OF FEBRUARY, 2026 MISC. PETITION No. 516 of 2026 PRABHAT SHRIVASTAVA AND OTHERS Versus PRABHU LAL RATHOD AND OTHERS Appearance:

Shri Prabhat K Shrivastava - Petitioner in Person.

ORDER The present Petition has been filed challenging the Order passed by the Trial Court whereby the Trial Court has rejected the application of the Petitioners/Plaintiffs under Order 26 Rule 9 of the C.P.C. for appointment of Local Commissioner.

2. The suit has been filed by the Petitioners in the matter of some drain constructed by the defendants which is leading to nuisance to the Plaintiffs. It is the case of Plaintiffs that the position of the drain has been changed and the defendants have closed the drains leading to water logging in the house of the Plaintiffs.

3. The Plaintiff had earlier filed an application for appointment of Local Commissioner which was rejected on 27.07.2023 on the ground that the application seeks to appoint Local Commissioner to examine that whether there is any septic tank and whether there are any old marks of any previous drain which have been closed or there is any underground drain. It was his assertion that the house itself is a complete evidence for those questions and therefore, the inspection of the house be carried out.

4. It was pointed out in the earlier application that whether smell, cold and polluted water in the well which is source of water which has been clogged should be assessed by the Local Commissioner.

5. The Trial Court had earlier rejected the same type of application vide Order dated 27.07.2023 and then again the Plaintiff filed a repeat application for the same purpose which has been rejected on 06.10.2025 on the same ground and also noting that earlier also similar type of application has been filed by the Plaintiff which has already been rejected on

27.07.2023.

4. It seems that to get over the earlier Order dated 27.07.2023, in the present Petition filed after passing the subsequent Order dated 06.10.2025, the Plaintiff has also challenged the earlier rejection Order dated 27.07.2023. Against the order dated 27.7.2023, the petition would be hit by delay and laches.

5. Upon a perusal of the contents of the application, as noted in the impugned Order of the Trial Court, it appears that the Plaintiff's evidence in the suit is still going on. Local Commissioner can be appointed for ascertaining the identification of the property or for the purpose of elucidating any dispute which can be done even suo motu. However, that situation would come if the material is produced before the Court and the Court itself finds unable to decide the issue, then it can take help by conducting a local investigation through Commission.

6. The aforesaid issue has been considered by a coordinate bench of this Court in M.P.No.5882/2018 in the following manner.:-

"8. As per the respective provision i.e. Order 26 Rule 9 of CPC, the Commissioner can be appointed by the Court for the purpose of elucidating any dispute by conducting a local investigation through commission. The Court suo motu can do such thing, but that situation comes only after considering the material produced before the Court and Court finds itself unable to decide the issue and then only it can take help by conducting a local investigation through commission. For the purpose of convenience, the provision of Order 26 Rule 9 of CPC is being reproduced hereinbelow:

“Order XXVI, Rule 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 matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court: Provided that, where the State Government has m