Sujoy Paul, J. - (1.)These petitions filed under Article 227 of the Constitution takes exception to the similar orders passed by the court below whereby applications filed by petitioners/defendants under Section 151 CPC is disallowed by the court below.
(2.)The admitted facts between the parties are that the civil suits were filed by the respondents/plaintiffs for eviction of the petitioners on relevant grounds as per M.P. Accommodation Control Act, 1961. During the pendency of the case, the petitioners filed applications under Section 151 CPC dated 25.1.2016. In the said applications, it is averred that in the first floor of the house of plaintiffs there exists a huge vacant place. In addition, in the constructed premises, there is a vacant place which may be examined and investigated. The other side opposed the said prayer and court below by impugned order dated 28.1.2016 rejected the said application.
(3.)The learned counsel for the petitioners assailed this order by contending that (i) the court below treated the application under Section 151 CPC as an application under Order 26 Rule 9 CPC whereas a minute reading of this application shows that it is based on Order 39 Rule 7 CPC; (ii) the test for appointment of Commissioner under Order 26 Rule 9 CPC was wrongly applied by the court below. Indeed, as per Rule 7 of Order 39 CPC, the court should exercise its power of inspection of the relevant property. Shri Akhilesh Jain, learned counsel for the petitioners placed reliance on an order of this Court (Gwalior Bench) passed in WP No.8069/2012 (Bhanupratap Singh vs. Sunil Kumar Singh and others).