Sanjeev Kumar Sonthaliya Vs Sanjay Agrawal

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Digitally signed by AJINKYA PANSARE Date: 2026.02.17 14:22:34 +0530

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2026:CGHC:8001

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 1368 of 2025

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Sanjeev Kumar Sonthaliya S/o Late Santosh Kumar Sonthaliya Aged About 57 Years R/o Juni Line Bilaspur, Tahsil And DistrictBilaspur (C.G.) At Present R/o- L-7, Vinoba Nagar Bilaspur, Tahsil And District- Bilaspur (C.G.), Mo. No. 9691136099

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... Petitioner(s)

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versus

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Sanjay Agrawal S/o Late Ramchandra Agrawal Aged About 48 Years Director - Rama Real Estate Private Limited, R/o Ward No. 14, Vinoba Nagar Ward, Kranti Nagar, Bilaspur, Police StationTarbahar, Tahsil And DistrictBilaspur (C.G.)

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Rajeev Agrawal S/o Late Ramchandra Agrawal Aged About 47 Years Director- Rama Real Estate Private Limited, R/o Ward No. 14, Vinoba Nagar Ward, Kranti Nagar, Bilaspur, Police StationTarbahar, Tahsil And DistrictBilaspur (C.G.)

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State Of Chhattisgarh Through- Collector, Bilaspur, DistrictBilaspur (C.G.)

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... Respondent(s)

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For Petitioner	: Mr. Ratnesh Kumar Agrawal, Advocate
For Respondents	: Mr. Manoj Paranjpe, Senior Advocate
No. 1 & 2	assisted byMs. Apoorva Ghore, Advocate
For Respondent No. 3	: Mr. Anil Pandey, G.A.

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Hon’ble Shri Justice Rakesh Mohan Pandey

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Judgment On Board

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13.2.2026

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1) Petitioner has filed this petition assailing the order passed by

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learned Eleventh District Judge, Bilaspur in Civil Suit No.

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2

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34-A/2025 dated 24.11.2025 whereby application moved by petitioner/plaintiff under Order 26 Rule 9 of CPC has been rejected.

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2) Facts of the present case are that petitioner/ plaintiff filed suit for possession, damages and mandatory injunction inter-alia on the ground that plaintiff purchased Shops No. GS-7, GS-8, GS-9 and GS-10 situated at ground floor of Rama Port Commercial Complex, Vyapar Vihar Bilaspur in sale consideration of Rs. 1 Crore through registered sale-deed dated 31.3.2013 and agreement was entered into between plaintiff and defendants on the same date. Defendants had agreed to complete the construction of stairs, glasswork and finishing work before handing over possession. Plaintiff pleaded that defendants have not handed over possession till date, therefore complaint was made and legal notice was sent to defendants and thereafter suit was filed. Defendants filed written statement and denied the plaint averments. They pleaded that construction work of all four shops is complete and plaintiff failed to take possession of suit shops. During pendency of suit, plaintiff moved an application under Order 26 Rule 9 of CPC for appointment of local commissioner for physical inspection of four shops to ascertain as to whether defendants have completed construction work or not. Defendants filed reply to said application and stated that issue with regard to completion of construction work can be proved by leading evidence and plaintiff cannot collect evidence with the help of

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Court. Learned trial Court vide order dated 24.11.2025 rejected the application.

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3) Learned counsel for the petitioner/ plaintiff submits that plaintiff has claimed damages to the tune of Rs. 2 lakhs per month from defendants as possession has not been handed over yet, therefore reliefs sought in the plaint, particularly reliefs (b) and (c) can only be ascertained by appointment of local commissioner who can physically inspect the premises and submit a report regarding the current status of construction, therefore learned trial Court ought to have allowed the application. He contends that by exercising power under Order 26 Rule 9 of CPC, it is the duty of the Court to pass order for appointment of local commissioner to elucidate any matter in dispute. He argues that there is dispute with regard to stage of construction of suit shops, therefore application under Order 26 Rule 9 of CPC was maintainable before learned Court below.

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4) On the other hand, learned Senior counsel appearing for respondents No. 1 and 2/ defendants submits that plaintiff cannot collect evidence with the help of Court by appointment of local commissioner. He contends that the party claiming possession of property cannot move application for appointment of local commissioner and to claim possession, he is required to lead evidence. He argues that local commissioner cannot be appointed to ascertain the stage of construction and learned Court below

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has rightly rejected the application moved by petitioner.

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5) I have heard learned counsel appearing for the respective parties, considered their rival submissions made herein above and carefully perused the documents placed on record.

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6) Order 26 Rule 9 of CPC which deals with commissions to make local investigations reads as under :-

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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:

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

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Bare reading of this provision would make it clear that local commissioner can be appointed to ascertain the market value of any property or amount of mesne profit or annual net profit.

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7) In the plaint, plaintiff has sought relief of possession and damages whereas in the application moved under Order 26 Rule 9 of CPC, plaintiff has made prayer for appointment of local commissioner to ascertain stage of construction of shops, thus there is no nexus between the prayer made in the application moved under Order 26 Rule 9 of CPC and the reliefs sought in the plaint.

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8) Further, plaintiff has pleaded that possession of shops has not been handed over whereas defendants have stated in written statement that possession was handed over and an agreement was also entered into between the parties. Plaintiff has claimed damages of Rs. 2 lakhs per month as defendants failed to provide possession of suit shops and plaintiff has to prove these facts by leading evidence. There are disputed questions of facts which can be resolved by learned trial Court after recording evidence by the parties. By allowing application moved under Order 26 Rule 9 of CPC, plaintiff cannot be permitted to collect evidence with the help of Court, therefore in my opinion, learned Court below rightly rejected the application moved by petitioner.

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9) Hon’ble Supreme Court in the matter of Shalini Shyam Shetty and Another Versus Rajendra Shankar Patil¹ while emphasizing power of High Courts under Article 227 of Constitution of India

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held as under :-

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64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases High Courts, in a routine manner, entertain petition under Article 227 over such disputes and such petitions are treated as writ petitions.

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We would like to make it clear that in view of the law referred to above in cases of property rights

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1 . (2010) 8 SCC 329

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and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown, that a private individual is acting in collusion with a statutory authority.

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We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

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10) High Court of Madhya Pradesh in the matter of Ashutosh Dubey and Another Versus Tilak Grih Nirman Sahkari Samiti and Another² has held that investigating the fact that as to which of the party is in possession of the property is beyond the scope of Order 26 Rule 9 of CPC and this question has to be decided by the Court after adducing the evidence by the parties.

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11) In light of the foregoing discussion and the settled legal principles established by the Hon’ble Supreme Court, no case is made out to interfere with the order impugned. Accordingly, this petition fails and is hereby dismissed . No order as to cost(s).

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Sd/- (Rakesh Mohan Pandey) JUDGE

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A j i n k y a

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2 . 2004 (3) MPLJ 213

Sanjeev Kumar Sonthaliya v. Sanjay Agrawal

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Sanjeev Kumar Sonthaliya v. Sanjay Agrawal

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