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THE HIGH COURT OF MADHYA PRADESH,

INDORE BENCH
MP No.2406/2019
Smt. Teena Pandey & Anr. vs. Dr. Kirnesh Pandey
Indore, dated :08.07.2019
Shri A.S. Rathore, learned counsel for the petitioners,
Shri Ajay Mishra, learned counsel for the respondent.
Heard.
1. The petitioners/defendants have filed the present
petition under Article 227 of the Constitution of India being
aggrieved by order dated 24.01.2019 passed by Civil Judge
Class-1, Indore whereby the application under Order 26 Rule
9 read with Section 151 of CPC has been allowed by
directing the parties to suggest the name of Commissioner.
2. Brief facts of the case are that the respondents being
plaintiff filed the Suit against the petitioner no.1 and
petitioner no.2 for the relief of declaration and permanent
injunction in respect of Plot No.387-E, Scheme No.114,
Indore. Petitioner no.1 and respondent are husband and wife
and matrimonial dispute is going on between them.
3. According to the plaintiff, he purchased the suit house
by registered sale deed dated 22.12.2015 in Rs.36,60,000/-.
He got it registered in the name of petitioner no.1 being his
wife. She did not pay any amount at the time of sale. The
plaintiffs have also obtained the loan of Rs.40,00,000/- from
the Union Bank. Thereafter, matrimonial dispute has started
with defendant no.1 and she lodged a report in the Police
Station under Section 498-A of IPC. She has also filed a
complaint under the Domestic Violence Act and initiated the
proceeding under Section 125 of Cr.P.C. for maintenance
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against him. Now, the plaintiff is alleging that defendant no.1

is raising construction over the plot contrary to the
sanctioned map. Therefore, he filed the Suit for declaration,
title and permanent injunction that defendant be restrained
not to raise the construction contrary to the sanctioned map.
4. The defendant no.1 filed the reply submitting that she is
raising the construction as per the map. The learned trial
Court has not decided the application filed under Order 39
Rule 1-2 of the CPC so far. Before that, the plaintiff has filed
an application under Order 29 Rule 9 of CPC seeking
appointment of any engineer of Municipal Corporation as a
Commissioner for submitting a report after inspection of site
whether the defendant no.1 is raising the constructing
contrary to the sanctioned map or not.
5. The learned trial Court vide impugned order dated
24.01.2019 has allowed the application, hence, the present
petition before this Court.
6. I have heard both the parties and have gone through the
record.
Discussion:
7. The provisions of Order XXVI Rule 9 of the CPC are
very clear and for the ready reference the same is reproduced
below :-

“9. Commissions to make local investigations.--

In any suit in which the Court deems a local
investigation to be requisite or proper for the purpose
of elucidating any matter in dispute, or of
ascertaining the market-value of any property, or the
amount of any mesne profits or damages or annual
net profits, the Court may issue a commission to such
person as it thinks fit directing him to make such
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investigation and to report thereon to the Court :

Provided that, where the State Government has
made rules as to the peprsons to whom such
commission shall be issued, the Court shall be bound
by such rules.”

8. It is clear from the above that during pendency of the

trial and before the judgment if the Trial Court finds that any
issue requires clarification or elucidation, the Court may
suomoto appoint Commissioner to submit the report for
which no application is required.
9. The scope of Order 26 Rule 9 of the CPC is very
limited. The Trial Court in any suit in which a local
investigation is required or proper for purpose of elucidating
any matter of dispute may appoint a Commissioner. It is
settled law that the parties are required to prove their own
case by way of evidence, therefore, it is the duty of
plaintiff/defendant to first give evidence in support of their
case. After the evidence of parties, if Court deem it proper
that any issue is requires clarification then the Court may
appoint a Commissioner. The report of Commissioner is
merely a piece of evidence and not binding on the Trial
Court. It can be used for the purpose of appreciating the
evidence came on record.
10. The Hon'ble Supreme Court has also considered the
scope of Order XXVI Rule 9 and held that the provision of
Order XXVI Rule 9 is to be invoked if the controversy is
regarding demarcation of the land between the parties.
11. The Hon'ble Supreme Court in the matter of Haryana
WAQF Board v/s Shanti Sarup and Ors., reported in (2008)
8 SCC 671, has held that if the controversy is regarding
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demarcation of the land between the parties, the Court should

direct the investigation by appointing a legal Commission.
Para 4 and 5 of the aforesaid judgment is reproduced as
under :-

“4. Admittedly, in this case, an application was

filed under Order 26 Rule 9 of the code of Civil
Procedure which was rejected by the trial Court but
in view of the fact that it was a case of demarcation of
the disputed land, it was appropriate for the Court to
direct the investigation by appointing a Local
Commissioner under Order 26 Rule 9, CPC.
5. The appellate Court found that the trial
Court did not take into consideration the pleadings of
the parties when there was no specific denial on the
part of the respondents regarding the allegations of
unauthorised possession in respect of the suit land by
them as per Para 3 of the plaint. But the only
controversy between the parties was regarding
demarcation of the suit land because the land of the
respondents was adjacent to the suit land and the
application for demarcation filed before the trial
Court was wrongly rejected.”

12. This Court in case of Durga Prasad v/s Parveen

Foujdar, reported in (1975) MPLJ 810 has also considered
the scope of Order XXVI Rule 9 and held that the Court
should order the appointment of Commission when there is a
dispute of encroachment. Para 25 of the said judgment is
reproduced as under :

“25. Point No.2: In cases where there is a

dispute as to encroachment, the fact whether there is
such an encroachment or not cannot be determined
in the absence of an agreed map, except by the
appointment of a Commissioner under Order 26,
Rule 9 of the Code of Civil
Procedure. On 15.09.1966 the plaintiff, accordingly,
applied for the issue of a commission to the Director
of Land Records for a theodolite survey of the
plaintiff's leasehold area.”
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13. Again this Court has taken similar view in case of

Jaswant S/o Kashi Ram Yadav v/s Deen Dayal, reported in
(2011) 2 MPLJ 576 has held that duties of the Court to issue
a commission by appointing an employee of revenue
department to get the land in dispute demarcated and for
which no application is required. Para 10 of the said
judgment is reproduced as under :-

“10. The moot question to be decided in this

appeal is whether the property in question is of
plaintiff or defendant. Both the parties are claiming
ownership right on it.According to the plaintiff he
purchased the land vide registered sale deed Ext-P-2
from Deen Dayal and the suit property is a piece of
that land but according to the defendant it is part of
the property which he purchased from Sudhir
Shrivastava vide registered sale deed Ext-D-3.
According to me, when there is dispute about
demarcation of the property in question and its
identity and both the parties are claiming it to be of
their own on the basis of their document of title it was
incumbent upon the Court itself to issue a commission
by appointing an employee of revenue department not
below the rank of Revenue Inspector to get it
demarcated so that it can be identified. In the instant
case my attention has been drawn by learned counsel
for defendants to the application filed under Order
XXVI, Rule 9, Civil Procedure Code but the same has
been rejected at the time of the consideration of
temporary injunction application. To me learned trial
Court erred in substantial error of law in rejecting
the said application. The learned First Appellate
Court has also committed the same error by not
allowing the said application. Indeed, it was the duty
of the Court itself to issue commission by appointing
an employee of Revenue Department not below the
rank of Revenue Inspector to get the land in dispute
demarcated and for its identification no application is
required for that purpose.”

14. In view of the law laid down in the above judgments,

the commission can be appointed only in case of demarcation
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and encroachment. The issue of possession is to be decided

only on the basis of evidence.
15. In the present case, the plaintiff is alleging that
defendant no.1 is raising construction contrary to the
sanctioned map. No such material has been produced in
support of his submissions. It is settled law that the plaintiff
is required to prove his case by giving evidence. He can not
invoke the provisions of Order 26 Rule 9 of the CPC for
collection of evidence. He has filed an application under the
Provisions of Order 26 Rule 9 of CPC seeking report to the
effect that the defendant no.1 is raising construction as per
the map or not. This allegation is liable to be proved by the
plaintiff by way of evidence. This is nothing but misuse of
Order 26 Rule 9 of CPC which is not permissible in law. The
trial Court has wrongly allowed the application, therefore, the
petition stands allowed and the impugned order dated
24.01.2019 passed by the trial Court, is set aside hereby.
Cc as per rules.
No order as to cost.
(Vivek Rusia)
Judge

amit
Digitally signed by Amit Kumar

Amit DN: c=IN, o=High Court of

Madhya Pradesh Bench Indore,
postalCode=452001, st=Madhya
Pradesh,
2.5.4.20=18db6b55824fa1834dc7

Kumar e61d06ed3c79a81bc156ec0309c5
245d47a0a52604de, cn=Amit
Kumar
Date: 2019.07.11 16:33:13 +05'30'