BHAGWAT NARAYAN DUBEY Vs. KALICHARAN

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India challenges the order dtd. 26/9/2018 (Annexure P/5) passed by Vth Civil Judge, Class-II, Niwari in R.C.S.No.300034-A/2016.

(2.) The facts of the case are that the petitioner-plaintiff filed a suit for declaration that his drain which passes through the space shown in the plaint map (Najri Naksha) be allowed to continue without any obstruction. It is also the prayed that it should be declared that the respondents-defendants have no right to close the said drain. A decree of permanent injunction restraining the respondents-defendants from creating any hindrance in free flow of his drain was also sought for. The respondents-defendants, while filing the written statement had denied the allegations made in the plaint. Even existence of the drain in question on the space as shown in the plaint map has been denied. When the civil suit was at the stage of evidence of the petitioner-plaintiff, an application under Order XXVI Rule 9 of the CPC was filed by the petitioner-plaintiff for appointing Commissioner for the purpose of ascertaining the factual dispute between the parties. The same has been rejected by the impugned order on the ground that the Commission cannot be appointed for the purpose of collecting the evidence of the petitioner-plaintiff. The learned trial court has given additional reasons to reject the application that neither the plaint map can be proved nor it can be certified by appointing a Commission.

(3.) Learned counsel appearing for the petitioner-plaintiff submits that the findings recorded by the learned trial court are erroneous. According to him, an application under Order XXVI Rule 9 of the CPC was not filed for collecting the evidence. However, the purpose of filing the application was to ascertain whether the respondents-defendants have encroached upon the Government land by constructing the rooms and, whether such construction is resulting to any blockage of the plaintiff's drain. According to him, for the purpose of ascertaining the correct factual position, the only remedy available is to file an application under Order XXVI Rule 9 of the CPC, therefore, the said application ought to have been allowed by the trial court. He placed reliance on the decisions of this court in the matter of Prembai (Smt.) and others Vs. Ghanshyam and others (2010) 3 MPLJ 345and Jaswant Vs. Deen Dayal (2011) 2 MPLJ 576.