GORELAL LODHI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been filed against the order dtd. 26/8/2023 passed by Civil Judge, Junior Division, Kesli, District Sagar in RCSA No.3/2019, by which an application filed under Order 26 Rule 9 of CPC has been rejected.

(2.) It is submitted by counsel for the petitioner that the petitioner has filed a suit for declaration of title and permanent injunction. Since the respondents are disputing the existence of a house which is 100 years old, therefore, the petitioner filed an application under Order 26 Rule 9 of CPC for appointment of local commissioner to submit a report with regard to existence of the house.

(3.) The Trial Court by the impugned order has rejected the application mainly on the ground that local commissioner cannot be appointed for collection of evidence. It is submitted that since the respondents have denied existence of the house, therefore, appointment of commissioner is necessary. Whatever a report will be submitted by the commissioner cannot be termed as evidence and thus, the Trial Court has committed a material illegality by rejecting the application filed under Order 26 Rule 9 of CPC.