Allahabad High Court
M/S Mehasi Medical Centre Thru. ... vs Manish Mehrotra on 7 February, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:7997 Court No. - 7 Case :- MATTERS UNDER ARTICLE 227 No. - 563 of 2025 Petitioner :- M/S Mehasi Medical Centre Thru. Managing Partner Shri Zubin Moidu Respondent :- Manish Mehrotra Counsel for Petitioner :- Sudhanshu Chauhan,Devendra Nautiyal Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the petitioner, Mohd. Nazish Iqbal, learned counsel for the respondent and perused the record.
2. The present petition has been filed by the petitioner challenging the order dated 21.12.2024, whereby the application for appointment of the Court Commissioner under Order 26 Rule 9 was rejected.
3. The facts that emerge are that a suit for ejectment and rent was filed by the respondent, which was decreed exparte, thereafter the said decree was put in execution. The petitioner took a ground amongst other ground that forceful possession of the premises had already been taken in July, 2016 and thus the execution application had become infructuous. In the said execution proceedings, an application under Order 26 Rule 9 was filed seeking appointment of Court Commissioner to elucidate the correct facts. The trial Court rejected the said application by means of the impugned order holding that in the decree passed the property was properly described and there was no material for issuance of a Commission for the purpose of elucidating any matter in dispute.
4. In view of the finding recorded and the decree passed, there was no reason for the Court to allow the application filed under Order 26 Rule 9. It is fairly well settled that the proceedings under Order 26 Rule 9 cannot be used for collecting the evidence to support the either of the party. The petitioner would be at liberty to contend in the execution proceedings that the possession had already been taken in July 2016 by taking whatever evidence he may deem fit. He would also be at liberty to request the Court for the presence of his Advocate at the time of actual possession of the premises. The execution petition, which is pending shall be decided expeditiously.
5. The present petition is disposed of in terms of the above.
Order Date :- 7.2.2025 Arun