ANURAG JAISWAL Vs. COLLECTOR, KHANDWA

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution of India challenges the order passed by the appellate Court in MCA No.32/2018 dated 27.08.2018, whereby the appeal preferred by the respondent No.3 against the order refusing injunction by the trial Court in Civil Suit No.31- A/2018 dated 18.05.2018 is allowed and the learned appellate Court set aside the said order dated 18.05.2018 and remitted the matter back before the trial Court with certain directions.

(2.) Mr. Akhilesh Jain, learned counsel for the petitioner submits that respondent No.3/plaintiff filed a suit for declaration and permanent injunction alongwith an application under Order 39 Rules 1 & 2 CPC. The trial Court rejected the injunction application by order dated 18.05.2018 (Annexure-P/7). Aggrieved, the respondent No.3 preferred an appeal under Order 43 Rule 1(r) of CPC. After hearing the parties, the appellate Court by order dated 27.08.2018 set aside the impugned order and directed to undertake certain exercise as mentioned in para 13 of this order and, thereafter, decide the injunction application afresh.

(3.) Criticizing this order, Mr. Jain, learned counsel for the petitioner contended that: (i) as per Order 26 Rule 9 CPC the power to appoint Commissioner cannot be exercised at the initial stage of the suit; (ii) while deciding the appeal under Order 43 Rule 1(u) the lower appellate Court cannot exercise power under Order 41 Rules 23, 23-A & 25 CPC. Reliance is placed on, [Nand Lal & others vs. Purshottam & other, 1988 AIR(Raj) 26]; (iii) in absence of availability of any exceptional circumstance, there was no occasion for the lower appellate Court to remit the matter back to the trial Court with certain directions; (iv) the necessary ingredients for invoking powers under Order 26 Rule 9 CPC were not available; (v) the Municipal Corporation was not impleaded by the plaintiff in the instant suit & (vi) the impugned order gives an opportunity to the plaintiff to collect evidence which is impermissible and beyond the scope of Order 26 Rule 9 CPC.