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2013 DIGILAW 22 (ORI)

Pitambar Nath v. Gourang Ch. Pati.

2013-01-18

B.K.MISRA

body2013
JUDGMENT B. K. MISRA, J. 1. The present petitioner being aggrieved with the order dated 23.07.2011 of the learned Civil Judge (Jr. Divn.) Salipur, in C.M.A. No. 79 of 2010 arising out of Civil Suit No. 17 of 2010 has approached this Court for quashing the said order at Annexure-5. 2. The opposite party of this writ petition as plaintiff filed a civil suit in the Court of learned Civil Judge (Jr. Divn.), Salipur against the defendant who is the present petitioner in this writ petition for permanent injunction restraining the defendant from creating disturbances over the peaceful possession of the suit Plot No. 4070/4987 appertaining to Khata No. 721 in Mouza Jhadeswarpur which stands exclusively recorded in his name. It is also the case of the plaintiff that the defendant has his homestead Plot No. 4070 which adjoins to the North of the suit plot, but with an oblique motive of grabbing the suit plot attempted to encroach the suit land for which the suit was filed for permanent injunction. 3. Perusal of the materials on record further indicates that on the prayer of the plaintiff-petitioner a restraint order was passed by the Court below in the Interim Application No. 18 of 2010 and the learned Court directed the parties to maintain status quo in respect of the suit property, but later on alleging violation of the said order of the Court, a petition was filed under Order 39, Rule 2(A) of the Civil Procedure Code (hereinafter referred to as "C.P.C.") which was registered as C.M.A. No. 79 of 2010. It was alleged that the defendant-opposite party in the said suit has made constructions over the suit land in violation of the order of status quo. Another petition was filed by the defendant in the said suit under Order 26, Rule 9, of the C.P.C. for appointment of a Civil Court Commissioner to report about the length and breadth of the constructions over the suit Plot No. 4070/4987 over an area of Ac. 0.20 " dec. and to measure out the same. Learned Civil Judge (Jr. Divn.), Salipur after hearing the parties by the impugned order at Annexure-5 allowed the said prayer and a Civil Court Commissioner was appointed for making local investigation in respect of the suit schedule land and to submit his report with regard to the location of the suit Plot No. 4070/4987. and to measure out the same. Learned Civil Judge (Jr. Divn.), Salipur after hearing the parties by the impugned order at Annexure-5 allowed the said prayer and a Civil Court Commissioner was appointed for making local investigation in respect of the suit schedule land and to submit his report with regard to the location of the suit Plot No. 4070/4987. The legality of the said order under Annexure-5 is assailed in this writ petition. 4. The power to appoint a Commissioner under Order 26, Rule 9 of the C.P.C. is wide and discretionary. It is also the settled position of law that the report of the Commissioner under Order 26, Rule 10 of the C.P.C. is a piece of evidence which can be rebutted by other evidence. Thus, appointment of a Commissioner would depend upon the nature of the dispute and the facts and circumstances of each case. 5. Learned counsel for the petitioner by placing reliance on two decisions of this Court as reported in 1987 CLT (Supp.) 521, Niranjan Patra and others v. Narahari Acharya and others, and Sitaram Nayak v. Smt. Usharani Das, 2003 (1) OLR 370 contended that where a party can on his own endeavour collect the materials through experts, Court need not depute a Commissioner because it may amount to assisting a party or collecting evidence for a party. Such contention of the learned counsel for the petitioner was met with stiff opposition from the side of the opposite party. It was contended by the learned counsel for the opposite party that the learned Court below has correctly exercised its judicial discretion in directing issuance of writ to the Civil Court Commissioner in view of the nature of dispute i.e. with regard to the identification and measurement of the suit land and with regard to the construction if any being carried over the same as such a report would help the Court in proper adjudication of the dispute when evidence would be led by the parties. In that context reliance was placed on two judgments of this Court reported in Vol. 112 (2011) CLT 405, 2011 (1) OLR 678 Kartik Chandra Nayak v. Bira Kishore Nayak and others, Vol. 64 (1987) CLT 722, Mahendranath Parida v. Purnananda Parida and others, Vol. In that context reliance was placed on two judgments of this Court reported in Vol. 112 (2011) CLT 405, 2011 (1) OLR 678 Kartik Chandra Nayak v. Bira Kishore Nayak and others, Vol. 64 (1987) CLT 722, Mahendranath Parida v. Purnananda Parida and others, Vol. 64 (1987) CLT 304, K. Raghunath Rao v. Smt. Tumula Jailaxmi and a decision of the apex Court reported in 2009 (II) OLR (SC) 57, Haryana Waqf Board v. Shanti Sarupand others. In Haryana Waqf Board case (supra) their lordships of the apex Court have categorically observed that where the controversy between the parties is regarding demarcation of an adjacent land Commissioner ought to have been appointed for such demarcation of the land. 6. In the instant case the controversy in between the parties is with regard to the possession of the land and construction alleged to have been made by the opposite party over plot No. 4070/4987 appertaining to Khata No. 721 measuring 20 decimals of land. According to the learned counsel for the present opposite party excess 20 decimals of land has been wrongly recorded in favour of the writ petitioner. 7. Thus, taking into consideration the nature of dispute the learned Court below allowed the prayer of the defendant-opposite party vide impugned order at Annexure-5 and directed deputation of the Civil Court Commissioner for making local investigation with regard to the suit schedule land i.e. with regard to the location of the suit Plot No. 4070/4987 measuring 20 decimals and to submit its report. 8. By keeping in mind the position of law enunciated by the Hon'ble Apex Court in Haryana Waqf Board (supra) and the decision of this Court in Kartik Chandra Nayak (supra) so also Mahendranath Parida case (supra) and keeping in mind the peculiar nature of dispute in my considered view in such cases local investigation with regard to the measurement appears to be essential by engaging a person qualified to conduct investigation and measurement. Accordingly, when the learned Trial Court exercised its judicial discretion, this Court in exercise of its extraordinary jurisdiction under Article 227 of the Constitution of India declines to interfere with the impugned order as there is no material on record to show that the learned Civil Judge (Jr. Divn.), Salipur acted in flagrant disregard of law or rules of procedures or acted in violation of principles of natural-justice and transgressed its jurisdiction. Divn.), Salipur acted in flagrant disregard of law or rules of procedures or acted in violation of principles of natural-justice and transgressed its jurisdiction. In Surya Dev Rai v. Ram Chander Rai and others, 2003 (II) OLR (SC) 361 as reported in 96 (2003) CL T 625 (SC), their Lordships of the apex Court have held that where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent and therefore, a writ of certiorari or the exercise of supervisory jurisdiction is not available. 9. Thus, for the aforesaid reasons, I do not find any compelling material on record to interfere with the impugned order at Annexure-5. Accordingly, the writ petition being devoid of merit stands dismissed but in the circumstances without any costs. Petition dismissed.