GHASIRAM DEHARIYA Vs. ANAKHLAL DEHARIYA

JUDGEMENT

(1.) Heard on the question of admission. The petitioners/plaintiffs have filed this petition under Article 227 of the Constitution of India being aggrieved by order dated 23-7-2013 (Annexure P-4) passed by Civil Judge Class II, Parasiya in Civil Original Case No. 12-A/2012 whereby their application filed under Order 26 Rule 9 of the CPC for appointment of Commissioner and for calling the report that which party is in actual possession of the disputed land, whether the plaintiffs are the defendants, has been dismissed.

(2.) I have heard the learned Counsel for the petitioners and perused the record. The impugned suit is at the initial stage. Even the process to record the evidence of parties has not been started. It is settled preposition of law that no party can be permitted to use the procedure of the Court to collect the evidence in support of his case as laid down by this Court long back in the matter of Laxman v. Ram Singh,1982 MPWN 255 and in the matter of Ashok Kumar Patel and another v. Ram Niranjan and others, 2007 3 MPHT 419, as mentioned by the Trial Court in the impugned order. In such premises, the impugned order does not require any interference at this stage. Resultantly, this petition is hereby dismissed. However, it is observed that after recording the evidence of both the parties, in order to clarify the ambiguity, if any, in the evidence, then either of the party, shall be at liberty to file appropriate application to call the report in that regard through Commissioner by inspection of the property. On filing such application at that stage, the Trial Court shall be at liberty consider the same in accordance with the procedure prescribed under the law to clarify the ambiguity without influencing from any observations, findings made by such Court in the order impugned or this Court in the present order.