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2016 DIGILAW 611 (ORI)

Ramakanta Patnaik v. Suresh Chandra Sahoo

2016-08-09

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This Civil Miscellaneous petition is filed under Article 227 of the Constitution of India assailing the order dated 12.01.2016 passed by the Civil Judge (Senior Division), Bhubaneswar in Civil Suit No.1131 of 2011 thereby rejecting an application under Order 26, Rule 9 of the Civil Procedure Code at the instance of the petitioners (plaintiff Nos.1 to 3 in the court below). 2. Short facts involved in the case is that plaintiff Nos.1 to 3 filed Civil Suit No.1131 of 2011 praying therein to declare the registered sale deed No.5396 dated 27.12.1993 as void, illegal, inoperative, fabricated one and not binding to the plaintiffs, further for a declaration that the defendant has not derived any right, title, interest by virtue of forged registered sale deed No.5396 dated 27.12.1993 in respect of suit ‘A’ schedule land, further to declare the possession of the plaintiffs confirm and in the event if it is found that during course of the suit, the plaintiffs are dispossessed from the suit land, the possession of the same be delivered to them through process of the court and also for permanent injunction against the defendant or anybody claiming under him restraining them/him from interfering in the possession of the plaintiffs in respect of suit ‘A” schedule land. 3. During pendency of the suit, plaintiffs filed a petition under Order 26, Rule 9 of the Civil Procedure Code on 22.12.2015 praying therein to pass an appropriate order for deputing a survey knowing Commissioner for identification of the suit Schedule-A land out of the Settlement Plot No.402. In filing the aforesaid petition, the plaintiffs contended before the trial court that for proper adjudication of the suit and in the interest of justice, a survey knowing Commissioner is required to be deputed for identification of the suit schedule-A land so also for ascertainment of fact of construction of house over the alleged purchased land. In filing objection, the contesting defendant challenged the petition submitting that as the plaintiffs are the master of their own suit, they must have an idea about the identification of the suit schedule land and they are required to prove their case basing on the pleadings made in their plaint. In filing objection, the contesting defendant challenged the petition submitting that as the plaintiffs are the master of their own suit, they must have an idea about the identification of the suit schedule land and they are required to prove their case basing on the pleadings made in their plaint. Further there is no such necessity here for the reason that there is already a report of the Pleader Commissioner following an order involving an application under Order 39, Rule 7, CPC at the intervention of this Court. The defendant also contended that by filing such application, there is a clear attempt by the plaintiffs to linger the disposal of the suit inspite of the fact that there is already a direction by this Court in disposal of C.M.P.No.1212 of 2015 where an order was passed targeting the disposal of the suit. Considering the rival contentions of the parties, the trial court while disposing the application under Order 26, Rule 9, CPC at the instance of the plaintiffs, rejected the application on the grounds assigned in the order impugned herein. 4. In assailing the impugned order, Mr.B.Pattnaik, learned counsel appearing for the petitioners apart from reiterating the grounds already taken in the application under Order 26, Rule 9,CPC, further submitted that it is the settled proposition of law to issue a writ normally directing the Commissioner for local investigation to appreciate the evidence already on record .But there may be a departure from the said rule as held by this Court in the case between Debendranath Nandi –vrs-Natha Bhuiyan, reported in 39 (1973) C.L.T. -180, between Mahendranath Parida –vrs-Purnananda Parida & Oothers, reported in 64 (1987) C.L.T.-722 and between Krushna Behera and another -vrs-Gitarani Nandy, reported in 1990(1) OLR-247. Mr. Pattnaik, learned counsel further contended that as per the settled proposition of law, the court has discretion to depute a survey knowing Commissioner depending on the facts of the case and pleadings of the parties and here is a fit case where the court ought to have issued a survey knowing Commissioner. Further since there is controversy with regard to identification of the suit schedule property, a survey knowing Commissioner should have been deputed. 5. On the other hand, Mr.A.P.Bose, learned counsel appearing for the Opp. Further since there is controversy with regard to identification of the suit schedule property, a survey knowing Commissioner should have been deputed. 5. On the other hand, Mr.A.P.Bose, learned counsel appearing for the Opp. party No.1 while vehemently objecting the pleadings and contentions raised on behalf of the petitioners, submitted that from the pleadings available in the plaint, there is no scope for deputing a survey knowing Commissioner. He further contended that as there is already a report available on record submitted by a Pleader Commissioner in disposal of the application under Order 39, Rule 7, C.P.C, there has been no illegality in the impugned order and thus contended for dismissal of the present Civil Miscellaneous Petition. 6. On perusal of the record, this Court finds the plaint involving C.S.No.1131 of 2011 as at Annexure-1. Perusal of the whole averments of the plaint, it reveals that plaintiffs have claimed specific relief as reflected in paragraph-2 hereinabove. The plaint averments nowhere indicate the dispute about the identification of the suit schedule property. The entire plaint story relates to the registered sale deed obtained by the Opp. party No.1 by practising fraud. This Court has also got a scope to go through the response and averments of the defendant-Opp. party No.1 in his written statement available at Annexure-2 series. On whole reading of the plaint and written statement, this Court nowhere finds any dispute regarding identification or location of the disputed suit schedule property. Order 26, Rule 9, CPC reads as under: “ 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: 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. ” 7. Reading of the aforesaid provision makes it clear that purpose of the Act is to elucidate any matter in dispute. ” 7. Reading of the aforesaid provision makes it clear that purpose of the Act is to elucidate any matter in dispute. From the observation made hereinabove, this Court nowhere finds any dispute with regard to identification or location of the disputed schedule property in the entire suit. Under the circumstances, this Court feels that there is no scope for an application under Order 26, Rule 9, CPC is applicable to the suit at the present stage. This Court has gone through the citations relied on by the learned counsel appearing for the petitioners and finds none of the citation is helpful to the petitioners due to difference in fact and situation. 8. In view of the observation and reasons assigned hereinabove, this Court finds no illegality or infirmity in the observation of the trial court in the impugned order. Under the circumstances, this Court finds no merit in the Civil Miscellaneous Petition. 9. Civil Miscellaneous Petition stands dismissed. Parties to bear their respective cost.