RAGHUVEER Vs. MULLO BAI

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution of India, is directed against the order Annexure P-1 dated 9.1.2012 whereby the application preferred under Order 26 Rule 9 C.P.C. by the defendant/respondent was allowed by the Court below.

(2.) SHRI H.K.Shukla, learned counsel for the petitioner submits that the defendant filed an application under Order 26 Rule 1 & 2 C.P.C. (Annexure P-4) before the Court below. He withdrew the said application without seeking any liberty from the Court below. Thereafter, he filed application under Order 26 Rule 9 C.P.C. (Annexure P-5). In absence of any liberty prayed for and reserved on withdrawal of first application Annexure P-4, the second application Annexure P-5 was not tenable. Secondly, it is contended that the Court below by allowing the application Annexure P-5 has virtually permitted the defendant to collect evidence by way of commission which is impermissible in the light of judgments reported in 2007(3) M.P.H.T. 419 (Ashok Kumar Patel and others Vs. Ram Niranjan Dubey and others) and 2004(3) M.P.L.J. 213 (Ashutosh Dubey and another Vs. Tilak Grih Nirman Sahkari Samiti and another).

(3.) I have bestowed my anxious consideration on the rival contentions advanced by the parties and perused the record.