GYANCHAND RAMRAKHYANI Vs. NAVDEEP KHERA

JUDGEMENT

(1.) Heard on the question of admission. The petitioners/ defendants have filed the present petition being aggrieved by the order dated 16.02.2018 by which application filed by the plaintiff under Order 26 Rule 9 of the C.P.C. filed by the plaintiff has been allowed by the learned Civil Court.

(2.) The plaintiff/ respondent No.1 filed the Civil Suit No. 264-A/2004 against mother, brother and sister for the relief of permanent injunction on 06.11.2004. Thereafter, the plaintiff filed another suit under Section 307 (5) of M.P. Municipal Corporation Act, seeking removal of the illegal construction raised by defendant No.2 to 4 / present petitioners. During pendency of the plaint on 19.08.2009, the plaintiff moved an application under Order 26 Rule 9 of the C.P.C. for appointment of commission to make a local investigation. The defendants opposed the said application and vide order dated 15.12.2009, the learned trial Court has dismissed the application. Thereafter, suit proceeded and after framing of the issues plaintiff and defendants examined their witnesses and thereafter the case was fixed for final argument on 12.10.2017. On the said date, the plaintiff again filed an application under Order 26 Rule 9 of C.P.C. for appointment of commission to make a local investigation. The defendants/ present petitioners opposed the said application but the learned trial Court vide order dated 16.02.2018 has allowed the said application. Hence, present petition before this Court.

(3.) Shri S.C. Bagadiya, learned senior counsel appearing on behalf of the petitioners/ defendants submitted that once the court has already rejected the application vide order dated 05.12.2009 then the second application under the same provision is not maintainable and the same ought to have been rejected under the principle of res judicata. In support of his contention he has placed these judgments Satyadhyan Ghosal vs. Deorajin Debi, 1960 AIR(SC) 941, Jagjeet Singh Vs. Bhopal Vikas Pradhikaran,2005 10 MPH 41, Devendra Kumar Nayak and & anr. vs. Sudha Nayak (SMT.) & Ors, 2015 ILR(MP) 3176.