Neutral Citation No. - 2025:AHC-LKO:4678 Court No. - 7 Case :- MATTERS UNDER ARTICLE 227 No. - 1905 of 2018 Petitioner :- Shamshad Respondent :- Addl. District Judge Court No. 4 Sultanpur And Others Counsel for Petitioner :- Sharad Pathak,Piyush Pathak Counsel for Respondent :- Gaurav Mehrotra Hon'ble Pankaj Bhatia,J. 1. Heard learned counsel for the petitioner. 2. The present petition has been filed challenging the order dated 22.11.2017, whereby the application filed by the petitioner as an applicant under Order 41 Rule 27 r/w Order 26 Rule 9 CPC was dismissed mainly on the ground that in terms of the pleadings contained in paragraph 4 of the plaint, it was incumbent upon the plaintiff to establish his case and the application under Order 26 Rule 9 CPC cannot be used for collecting the evidence. 3. The submission of learned counsel for the petitioner is that in view of the disputed claims of the rival parties in the suit, wherein the plaintiff had claimed the property bearing Ahata No.182 and 183 as a land adjacent to the land owned by the petitioner, which was denied by the respondents and the suit was dismissed after which, an appeal was preferred. 4. The contention of learned counsel for the petitioner is that during the pendency of the suit also, an application under Order 26 Rule 9 CPC was filed, which was dismissed and a specific ground has been taken in the memo of appeal challenging the said order also. 5. In view of the pleadings contained in memo of appeal, wherein a specific challenge has been raised to the rejection of the application for appointment of the Commissioner. Prima facie, no error can be found with the impugned order rejecting the application under Order 41 Rule 27 CPC and Order 26 Rule 9 CPC. 6. It is, however, directed that while deciding the appeal on merits, the appellate court shall specifically decide the ground No.9, whereby it has been pleaded in the memo that the rejection of the Survey Commissioner's application was wrong in law. 7. The petition stands disposed of with the said directions. Order Date :- 23.1.2025/Ashutosh Digitally signed by :- ASHUTOSH PANDEY High Court of Judicature at Allahabad, Lucknow Bench Digitally signed by :- ASHUTOSH PANDEY High Court of Judicature at Allahabad, Lucknow Bench