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2017 DIGILAW 1197 (ORI)

Minakhee Rout v. Bauribandhu Samal

2017-10-25

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. This Civil Miscellaneous Petition involves a challenge to an order passed by the Second Additional Civil Judge (Senior Division), Cuttack in the matter of rejection of an application for appointment of Commission to make local investigation under the provision of Order 26, Rule 9 of the Code of Civil Procedure. 2. Short background involved in the case is that the petitioner being the plaintiff filed a suit for declaration of title against the defendants on the basis of an oral agreement dated 31.1.1995 between the plaintiff and the defendant No.1 (opposite party no.1) and his mother. Petitioner-plaintiff claimed that plaintiff paid a sum of Rs.40,000/-on the very date to the defendant no.1-opposite party no.1 with his mother to purchase a piece of land measuring Ac.0.020 decimals from plot no.747 under Khata no.1511 in Mouza-Cuttack Sahar, Unit No.23. It is claimed that since the plaintiff and defendant no.1 as well as his mother are all related, the transaction was on oral agreement with condition to enter into a sale deed after obtaining Urban Land Ceiling permission. It is also claimed by the plaintiff that on payment of the aforesaid amount, she occupied the suit premises and remained there after making necessary repairs, as the house was a thatched one. Although the agreement was for sale of Ac.o.020 decimals of land but the plaintiff forcibly occupied an area of Ac.0.023 decimals. While the matter stood thus, it is claimed that with the intention to sale the land measuring Ac.0.020 decimals and the opposite party no.1 along with his mother executed an agreement on 1.9.1997 behind the back of the plaintiff-petitioner with wrong disclosure therein. It is ascertained that a sale deed was consequently executed and registered on 26.11.1997 involving only Ac.0.015 decimals instead of Ac.0.020 decimals under the pretext of permission of the competent authority to the above extent only. On failure of defendant no.1 and his mother’s executing a sale deed for the remaining area of Ac.0.008 decimals having a cow shed in a tin roof house and a thatched house, finding no other alternative, the plaintiff-petitioner filed Civil Suit No.296 of 2009. The defendant no.1 and defendant nos.3 to 6 on their appearance challenged the claim of the petitioner seriously objecting the claim on the basis of oral agreement for sale of land to the extent of Ac.0.023 decimals. The defendant no.1 and defendant nos.3 to 6 on their appearance challenged the claim of the petitioner seriously objecting the claim on the basis of oral agreement for sale of land to the extent of Ac.0.023 decimals. During trial, of the proceeding, the plaintiff-petitioner filed an application under Order 26, Rule 9 of the Code of Civil Procedure for appointment of a commission for local investigation involving the suit plot involved therein. On conclusion of evidence, the trial court taking up the application involved herein rejected the application under Order 26, Rule 9 of the Code of Civil Procedure resulting the cause of action for filing the present Civil Miscellaneous Petition along with decisions on the other applications i.e. application Under Order 18 read with under Order 26, Rule 4(A) of the Code of Civil Procedure, application under Section 73 and 74 of Evidence and the application under Order 16, Rule 9 of the Code of Civil Procedure. However, the Civil Miscellaneous Petition is confined to 4th part of the order relating to Order 26, Rule 9 of the Code of Civil Procedure only. 3. Confining her argument, Ms.Gayatri Das, learned counsel appearing for the petitioner submitted that for the pleading available therein and serious dispute with regard to existence of a cow shed over the disputed property, the plaintiff-petitioner had a clear case asking the trial court for obtaining a report from the Commissioner on local investigation of the suit property. Taking this Court to the provisions contained in Order 26, Rule 9 of the Code of Civil Procedure and the reasons assigned in the impugned order, learned counsel appearing for the petitioner submitted that in the existence of the dispute, the trial court failed in appreciating the application of the provision and arrived at wrong conclusion and passed erroneous impugned order, which unless be interfered, will result in a bad law. Referring to the decisions rendered in the case of Ram Prasad Mishra v, Dinabandhu Patri and another, 2012 (Supp.-II) OLR-520, in the case of Shreepat v. Rajendra Prasad and Ors, JT 2000 (7) SC 379 and in the case of Mahendranath Parida v. Purnananda Parida and others, AIR 1998 Orissa 248, learned counsel for the petitioner submitted that the above decisions have direct bearing on the case at hand and the impugned order thus not only becomes bad for the decision hereinabove but also required to be interfered and set aside. 4. Learned counsel appearing for the contesting opposite parties on the other hand taking this Court to the pleadings available on record through the plaint as well as written statement filed by the respective parties submitted that for the limited nature of dispute involved therein having a claim over the rest area of Ac.0.08 decimals of land, the only contest involved in the matter is as to whether the plaintiff has a right to claim over the disputed property, the existence of cow shed over the suit property or not becomes immaterial. Referring to the reasonings assigned in the impugned order, Sri Lenka, learned counsel for the contesting opposite parties submitted that there has been proper consideration of the petition involved and the reasons are also well supported by the settled position of law and therefore not only there is no infirmity in the impugned order but it also leaves no scope to this Court for interfering in the said order. 5. Considering the rival contentions of the parties and on perusal of the pleadings involved in the suit through the plaint available at Annexure-2 to the Civil Miscellaneous Petition, this Court takes into consideration the plaint pleadings in paragraphs-1, 2, 3, 4, 6, 6(a), 7 and the response of the defendants in paragraphs-5, 6, 7, 8, 9, 10 and 11. 6. Now looking to the plea taken in the application under Order 26, Rule 9 of the Code of Civil Procedure, as available at Annexure-7, this Court finds the petitioner taking resort to some development taken place in consideration of application under Order 39, Rule 7 of the Code of Civil Procedure has applied for local investigation applying the provision contained under Order 26, Rule 9 of the Code of Civil Procedure. Reading the pleadings involved in the plaint as well as the response of the contesting defendants in the written statements in the paragraphs taken note hereinabove, this Court finds there was absolutely no involvement of a cow shed in the ultimate decision in the suit. So far pleadings of the plaintiff which led the question to be determined through the Commissioner as appearing at Paragraph-3 of the application under Order 26, Rule 9 of the Code of Civil Procedure available at page 16 of the Civil Miscellaneous Petition, this Court finds in absence of any dispute on the identification of the property required to be considered for the ultimate decision in the suit taking into consideration the particular prayer involved therein, deputation of Commissioner for local investigation applying the provision under Order 26, Rule 9 of the Code of Civil Procedure will be irrelevant. On perusal of the impugned order, this Court finds the trial court is absolutely right in observing that the deputation of Commissioner under the circumstance involving existence of cow shed has no bearing on the claim in the suit. For the reasons assigned therein, this Court finds no scope for interfering in the impugned order. 7. As a consequence, this Court finds no merit in the Civil Miscellaneous Petition. Consequently while refusing to interfere in the impugned order, this Court dismisses the Civil Miscellaneous Petition. No order as to cost.