Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 571 (ORI)

BIMAL KANTA TRIPATHY v. SATYA NARAYAN MISHRA

2015-10-01

A.K.RATH

body2015
JUDGMENT : Dr. Akshaya Kumar Rath, J. 1. Aggrieved by and dissatisfied with the order dated 2.8.2008 passed by the learned Civil Judge (Jr. Divn), 1st Court, Cuttack in C.S. No. 213 of 2003, the instant petition is filed under Article 227 of the Constitution of India. By the said order, learned trial court rejected the application of the plaintiff filed under Order 26 Rule 9 C.P.C. to depute a survey knowing civil court commissioner. The petitioner as plaintiff filed a suit for perpetual injunction restraining the defendant-opposite parties from interfering with the peaceful possession of the suit land or making any construction over the same in the court of the learned Civil Judge (Jr. Divn.), 1st Court, Cuttack, which is registered as C.S. No. 213 of 2003. Pursuant to issuance of summons, the defendants entered appearance and filed their written statement denying the assertions made in the plaint. While the matter stood thus, an application was filed by the plaintiff under Order 26 Rule 9 C.P.C., for deputing a civil court commissioner to resolve the dispute. Learned trial court allowed the same and accordingly deputed a survey knowing civil court commissioner to measure the land and submit a report. The commissioner submitted the report on 12.3.2008. The plaintiff filed objection to the same. By order dated 15.7.2008, learned trial court rejected the report of the commissioner. Thereafter, the plaintiff filed an application on 21.7.2008 for deputing afresh survey knowing civil court commissioner Vide Annexure-3. The defendants filed objection to the, same, vide Annexure-4. By order dated 2.8.2008, learned trial court rejected the petition vide Annexure-5. The operative part of the impugned order, is quoted hereunder: "xxx xxx xxx ........... Thereafter, the plaintiff filed an application on 21.7.2008 for deputing afresh survey knowing civil court commissioner Vide Annexure-3. The defendants filed objection to the, same, vide Annexure-4. By order dated 2.8.2008, learned trial court rejected the petition vide Annexure-5. The operative part of the impugned order, is quoted hereunder: "xxx xxx xxx ........... Then in such circumstances, after closer of evidence from both the sides and without considering the actual factum of dispute among the parties in the suit regarding the actual existence of the suit boundary wall at the spot on consideration the evidence, already adduced on record, a party like the plaintiff be assisted by this court to collect any evidence in it's favour by allowing the present petitioner and therefore in consideration of all Such discussed facts, this court is of the humble view that at this stage the present petition filed by the plaintiff merits no consideration, when the suit posted for hearing argument from both the sides and therefore the same is liable to be rejected at this stage with further observation that, if the court would arrive at a conclusion that neither parties has been able to produce evidence to that effect, then the same can be considered thereof by the court only. XXX XXX XXX. 2. Heard learned counsel for the parties. 3. Learned trial court came to hold that when the suit was posted for argument, the petition was filed for deputing a survey knowing civil court commissioner. It was further held that both the parties have adduced evidence in support of their respective claims. The-court should not assist the parties to collect the evidence on its behalf. The, earlier report of the civil court commissioner was ignored. Thus after closure of evidence) and without considering that factum of dispute and existence of boundary will, the court Cannot assist the party to collect evidence. 4. Order 26 Rule 9 C.P.C. is quoted hereunder. 9. The-court should not assist the parties to collect the evidence on its behalf. The, earlier report of the civil court commissioner was ignored. Thus after closure of evidence) and without considering that factum of dispute and existence of boundary will, the court Cannot assist the party to collect evidence. 4. Order 26 Rule 9 C.P.C. is quoted hereunder. 9. Commissions to make local inventions--In any suit in which the, Court deems a local in inventions 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 thin fit directing him to make such investigations and to report thereon to the Court: 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." 5. In Bhabesh Kumar Das v. Mohan Das Agrawal 2015 (II) CLR 603, this Court held as under; In the case of Prasanta Kumar Jena Vs. Choudhury Purna Ch. Das Adhikari 99 (2005) CLT 720, the learned Single Judge of this Court held that an application under Order 26 Rule 9 C.P.C. can be considered only after closure of the evidence when the court finds difficult to pass an effective decree on the existing evidence. Relying on the said decision, learned Single Judge of this Court set aside the order of appointment of Survey Knowing Commissioner for measurement and demarcation of the land passed by the learned trial court. The same was challenged before this Court in the case of Ram Prasad Mishra Vs. Dinabandhu Patri and another. The Bench speaking through Mr. V. Gopala Gowda, C.J. (as he then was) held that, the learned Single Judge has interfered with the order passed by the learned trial court in appointing the Survey Knowing Commissioner, ignoring the decision of this Court in the case of Mahendranath Parida Vs. Purnananda Pardia and others AIR 1988 ORISSA 248. Thus, the decision in the case of Prasanta Kumar Jena (supra) has been impliedly overruled by the Division Bench of this Court. Purnananda Pardia and others AIR 1988 ORISSA 248. Thus, the decision in the case of Prasanta Kumar Jena (supra) has been impliedly overruled by the Division Bench of this Court. In Mahendranath Parida (supra), this Court held that when the controversy is as to identification, location or measurement of the land or premise or object, local investigation should be done at an early-stage so that the parties can be aware of the report of the Commissioner and can go to trial prepared. In Ramakant Naik and others Vs. Bhanja Dalabehera 2015 AIR CC 1724 (ORI), this Court held that issuance of a Commission for local investigation is the discretion of the Court. While considering the prayer for appointment of Commission, the Court must apply its mind to the facts and circumstances of the case and pass order. No straight jacket formula can be laid down. Before issuance of Commission, the Court must be satisfied that there is prima facie case in favour of the applicant. On a reading of Order 26 Rule 9 C.P.C., it is manifest that the stage of appointment of Survey Knowing Commissioner has not been prescribed. When the legislature in its wisdom has not prescribed, the stage of appointment of Survey Knowing Commissioner, the power of the Court to appoint the Survey Knowing Commissioner can not be cabined, cribbed or confined." 6. On a conspectus of the plaint, it is evident that the dispute pertains to boundary wall. The application was filed by the plaintiff, to depute a civil court commissioner to find out the existence of the, boundary wall. The earlier application filed by the plaintiff for deputing a survey knowing civil court commissioner under Order, 26 Rule 9 C.P.C., was allowed by the learned-trial court. The commissioner submitted its report. Since both the parties objected to the same, learned trial court rejected the report. 7. As has been held by this Court in Bhabesh Kumar Das cited supra, when the legislature in its wisdom has not prescribed the stage of appointment of survey knowing commissioner, the power of the Court cannot be cabined, cribbed or confined. The survey knowing commissioner at any stage of the suit provided the pre-conditions enumerated in Order 26 Rule 9 C.P.C. exists. In view of the same, this Court has no hesitation to quash the order dated 2.8.2008 passed by the learned Civil Judge (Jr. The survey knowing commissioner at any stage of the suit provided the pre-conditions enumerated in Order 26 Rule 9 C.P.C. exists. In view of the same, this Court has no hesitation to quash the order dated 2.8.2008 passed by the learned Civil Judge (Jr. Divn.), 1st Court, Cuttack in C.S. No. 213 of 2003. Accordingly, the said order is quashed. The application filed by the plaintiff under Order 26 Rule 9 . C.P.C. is allowed. Learned trial court shall do well to appoint a survey knowing civil court commissioner within a period of fifteen days after receipt of the order. Since the evidence is closed, learned trial court shall do well to, deliver the judgment after receipt of the report of the commissioner. The petition is allowed. Final Result : Allowed