Bhagwan Singh vs. Bhagwan Singh

1 THE HIGH COURT OF MADHYA PRADESH

M.P. No. 113/2018 Bhagwan Singh Vs. Bhagwan Singh and another

Gwalior, Dated:-30/01/2019

Shri G.P. Chourasiya, learned counsel for the petitioner.

Shri Amit Lahoti, learned counsel for respondent No.1.

This is plaintiff's petition under Article 227 of the Constitution against the order dated 14/12/2017; whereby, the trial Court has dismissed an application under Order 26 Rule 9 of the Code of Civil Procedure, 1908.

The suit is for specific performance of agreement of sale of agricultural land bearing survey No. 141/2/1 and 148/5 on the contention and to ascertain the fact that during pendency of the suit that land in question is acquired for water canal and to ascertain the same sought issuance of Commission.

The trial Court dismissed the application holding it not to be in congruity with the pleadings as would create any ambiguity for taking decision on merit.

Rule 9 of Order 26 of Code of Civil Procedure, 1908 envisages:-

"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 investigation and to report thereon to the Court:

Provided that, where the State Government has

2 THE HIGH COURT OF MADHYA PRADESH

M.P. No. 113/2018

Bhagwan Singh Vs. Bhagwan Singh and another

made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

Thus unless the existing evidence is such that no definite opinion/ finding can be returned, in such event the need arises for appointing a Commission for the report.

In the case at hand, no such event as contemplated under Rule 9

Order 26 of the Code being present, the impugned order does not suffer any jurisdictional error.

Consequently, petition fails and is dismissed. No costs.

(Sanjay Yadav) Judge

Shubhankar*

SHUBHANKAR MISHRA 2019.02.06 16:54:18 +05'30'