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MISC. Petition No. 5090 of 2022 · Madhya Pradesh High Court

MISC. Petition No. 5090 of 2022ATUL SREEDHARAN3 min read

Case at a glance

Bench
ATUL SREEDHARAN

Outcome

Dismissed

The petition stands dismissed

Provisions considered

Key paragraphs

  • Para 22. VIJAY KUMAR JAIN S/O BABU LAL JAIN, AGED ABOUT 76 YEARS, 6/65 SINDHI CAMP BADA KAREELA GALI SANT RAVIDAS WARD SAGAR DISTRICT SAGAR (MADHYA PRADESH) SMT. UMA SONI W/O ANIL SONI, AGED ABOUT 32 YEARS, R/O WARD NO. 12 BAXWAHA DISTRICT CHHATARPUR (MADHYA PRADESH)…

Judgment

(BY SHRI RATNA BHARAT TIWARI, LEARNED COUNSEL) .....PETITIONER AND

2.

VIJAY KUMAR JAIN S/O BABU LAL JAIN, AGED ABOUT 76 YEARS, 6/65 SINDHI CAMP BADA KAREELA GALI SANT RAVIDAS WARD SAGAR DISTRICT SAGAR (MADHYA PRADESH) SMT. UMA SONI W/O ANIL SONI, AGED ABOUT 32 YEARS, R/O WARD NO. 12 BAXWAHA DISTRICT CHHATARPUR (MADHYA PRADESH) (BY NONE) .....RESPONDENTS This petition coming on for admission this day, th e court passed the following: ORDER The present petition has been filed by the petitioner who is aggrieved by the order dated 29.9.2022 (Annexure P/1) passed by the learned court of the Civil Judge (Link Court Baxwaha), Chhatarpur, in Civil Suit No.4A/2018 dismissing an application filed under Order 26 Rule 9 CPC whereby an application for appointment of Commissioner was declined by the learned trial court. 2 Having gone through the impugned order, it appears that the respondents herein, who are the defendants before the learned court below, had filed their reply and taken the objection that the said application has only been filed for the purpose of causing delay in the proceedings and that an earlier application was dismissed by the learned trial court on 27.2.2019 which was also filed under Order 26 Rule 9 CPC. The learned court below has held that the plaintiff has to prove his case on the basis of the evidence that has been adduced by him before the learned trial court and cannot take the benefit of the weaknesses in the defendants' case.

It has also taken note of the fact that the earlier application under the same provision was dismissed vide order dated 27.2.2019. Learned counsel for the petitioner submits that it is correct that the trial is at the final stage and the evidence of the defendants has also been concluded and the case is at the stage of final hearing. He, however, submits that the issue relating to the exact boundaries of the property still remains in issue and the same can only be determined by the Commissioner who measures the suit property and comes to a conclusion. As far as the impugned order is concerned, this court does not find any perversity in the same as it is also observed that in the earlier application moved under the same provisions was dismissed vide order dated 27.2.2019. Learned counsel for the petitioner has submitted that the earlier order dismissing the similar application was dismissed on the grounds that the evidence has not been led and sufficient material is not on record to ascertain whether such an order was needed.

Operative part

However, it is also undisputed that the petitioner never approached this court against the dismissal of the earlier application under Order 26 Rule 9 CPC. 3 Under the circumstances, this court does not find any perversity in the said order and the order passed is reasonable and probable. Therefore, there is no requirement to interfere involving jurisdiction of this court under Article 227 of the Constitution. The petition stands dismissed. PRASHANT SHRIVASTAVA 2022.11.15 11:48:13 +05'30' (ATUL SREEDHARAN) JUDGE

Questions this judgment answers

What did the Court decide in this case?

The Court recorded the following disposition: The petition stands dismissed

Which statutory provisions did this judgment involve?

Code of Civil Procedure, 1908 — O. 26 r. 9; Constitution of India — art. 227.

Precedent status how later indexed judgments have treated this case

No known negative treatment found in the Courts & Cases corpus.

This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.

Why is this linked?

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