The Allahabad High Court dismissed a petition under Article 227 of the Constitution of India, filed assailing the order dated 10th January 2018, passed by the trial court rejecting the petitioner's application for the issue of a commission under Order 26 Rule 9 of the Code of Civil Procedure, as well as the order dated 31st January 2020 passed by revisional court dismissing the revision. The Court observed that the provisions of Order XXVI Rule 9 of the Code do not make it applicable for the collection of evidence on behalf of the plaintiff.
Brief Facts:
A suit had been filed for cancellation of the sale deed and granting permanent injunction concerning the immovable property in which both the plaintiff as well as defendant claimed possession in the dispute. The petitioner-plaintiff filed an application for the issuance of a commission under Order 26 Rule 9 read with Section 151 CPC on 2nd August 2016. The same was rejected through detailed order dated 25th September 2017, which became final since no revision there against was affected.
A subsequent application under Order 26 Rule 9 read with 2 Section 151C.P.C. was filed on 14th November 2017 which was rejected through the impugned orders. Hence, the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner argued that the courts below have erred in rejecting the application for issuance of commission in view of the fact that the suit was not only for cancellation of the sale deed but for permanent injunction as well and therefore it was incumbent upon the court concerned to have indicated the status of parties as on the date on which the application was being made so as to prevent any future change at the spot.
Contentions of the Respondent:
The Learned Counsel for the Respondent argued that orders impugned are in consonance with the settled law and do not warrant any inference, particularly because the suit was primarily for cancellation of the sale deed in which there is no occasion for determination of actual spot condition by the issuance of commission. Further, he submitted that there is no error in the order dated 10th January 2018 which was rejected primarily because the second application for issuance of a commission under Order 26 Rule 9 C.P.C. was filed even though the first one had already been rejected on 25th September 2017.
Observations of the Court
The Court observed that it is evident that the application for issuance of commission to conduct an investigation and examination regarding the possession of parties to a dispute would not be maintainable in terms of Order XXVI Rule 9 of the Code particularly when there is no explanation furnished by the plaintiff that he could not have access to any documents required for proving his possession over the suit property. Even otherwise, it is impossible for a commission to decide possession of a particular party to dispute over the suit property only on the basis of a cursory examination.
Further, the Court remarked that applications under Order XXVI Rule 9 cannot be allowed merely for the purposes of facilitating the case of one or the other party and it is not the business of the courts to discharge the burden of evidence of either party.
The decision of the Court:
The Allahabad High Court, dismissing the petition, held that no exception can be taken to the impugned orders and as such the petition is devoid of merits.
Case Title: - Km. Chandana Mukherji Died Thru. Smt Sarla vs Addl. District Judge Special Judge P.C. Act Lko & Anr.
Coram: Hon’ble Justice Manish Mathur
Case no.: MATTERS UNDER ARTICLE 227 No. - 6654 of 2020
Advocate for the Petitioner: Mr. Arun Kumar Srivastava
Advocate for the Respondent: Mr. Ghanshyam Yadav
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