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2017 DIGILAW 1205 (ORI)

Nirupama Samal v. Mayabati Agarwal

2017-10-27

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This civil miscellaneous petition involves allowing an application under Order 41, Rule 27 of C.P.C read with Order 26, Rule 10 of C.P.C and U/s.151 of C.P.C. at the instance of the opposite parties. 2. Assailing the impugned order, Sri Patnaik, learned counsel for the petitioner referring to the pleadings made in the plaint as well as in the written statement involving the dispute with regard to identification of the property based with claim of plaintiff’s possession over the plot nos.2571 & 2572 involved in the suit, further, referring to the additional issue nos.x & xi as framed by the trial Court and findings thereon by the trial Court in paragraph no.18 of the judgment passed involving the suit submitted that once the trial Court has sent a Commission in exercise of power under Order 26 Rule 10 of C.P.C and a report has also been submitted and taking into consideration that report a judgment and decree have already been passed, a party is debarred from claiming further exercise of power under Order 26 Rule 10 of C.P.C. in the pending appeal proceeding. It is under the circumstance, learned counsel for the petitioner submitted that the lower appellate Court having failed to appreciate the above legal aspect of the matter, has arrived at wrong and illegal impugned order, which unless be interfered with and set aside, will lead to a bad law. 3. Sri Niranjan Panda-1, learned counsel for the opposite parties on the other hand, referring to the claim made by the opposite parties in the lower appellate Court in paragraph 5 and the discussions made by the lower appellate Court in paragraph 6 of the impugned order contended that for the claim involved therein and also the discussions therein, there was a justified claim for appointment of a further Survey knowing Commissioner to identify the property and thus, claimed that there has been right consideration of the aspect involved by the lower appellate Court requiring no interference in the same by this Court. 4. Referring to a judgment of this Court in the case of Nakula Sahu vs. Suresh Chandra Beherdolai and others as reported in 2016 (I) OLR – 624 Sri Panda further submitted that the decision supports the case of the opposite parties. Sri Panda, therefore, submitted that there is no infirmity in the impugned order. 5. 4. Referring to a judgment of this Court in the case of Nakula Sahu vs. Suresh Chandra Beherdolai and others as reported in 2016 (I) OLR – 624 Sri Panda further submitted that the decision supports the case of the opposite parties. Sri Panda, therefore, submitted that there is no infirmity in the impugned order. 5. Considering the rival contentions of the parties, looking to the claim and counter claim involving the plaint as well as written statement particularly involving the identification of the disputed property and the claim with regard to the possession of the disputed property by the respective parties, it appears, the trial Court attaining such issues has specifically framed the additional issue Nos.x & xi, which reads as follows: “(x) Whether the suit land is perfectly identified at the spot? (xi) Whether the plaintiff is in possession of Plot Nos.2571 & 2572?” Basing on the contest of the parties on both the issues, the trial Court entering into the discussions and the pleadings available as well as the submissions in respect of the same by the respective parties, further taking into consideration the report submitted by the Survey Knowing Commissioner being deputed in the suit process in exercise of power under Order 26 Rule 9 of C.P.C. in paragraph 18 has arrived at his findings. From the discussions made therein involving paragraph nos.17 & 18, this Court finds, there is no dispute that a petition was placed insisting the Court below for deputing a Survey Knowing Commissioner in the matter of obtaining a report through the Commissioner. The report was furnished before the trial Court on both the aspect regarding identification as well as the aspect of possession by the parties. This Court finds, there was no serious objection by either of the parties to the contents in the report taken into account. Thus, the trial Court basing upon the observation of the Survey knowing Commissioner, has given the finding involving the additional issue nos.x & xi and which has been impugned in the appeal proceeding. For no objection by the plaintiff specifically to the acceptance of the Survey Knowing Commissioner’s report and even assuming that there was any objection by the plaintiff on the report of the Survey Knowing Commissioner, nothing prevented the plaintiff to counter the report by production of report engaging a private Survey knowing Commissioner. For no objection by the plaintiff specifically to the acceptance of the Survey Knowing Commissioner’s report and even assuming that there was any objection by the plaintiff on the report of the Survey Knowing Commissioner, nothing prevented the plaintiff to counter the report by production of report engaging a private Survey knowing Commissioner. In absence of which, this Court observes, the report submitted by the Survey Knowing Commissioner deputed during the trial proceeding, has been accepted by both. Therefore, there is no scope for either of the parties to again resort to the provision under Order 26 Rule 9 & 10 of the C.P.C., in absence of any provision for successive application, which is otherwise prohibited by Law. 6. Considering the citation produced by the learned counsel for the opposite parties, this Court finds, the judgment does not involve deputation of a Survey Knowing Commissioner in spite of existence of a report of the Survey Knowing Commissioner. The question involved therein is whether the appellate Court can depute a Survey Knowing Commissioner in exercise of power under Order 26 Rule 9 & 10 of C.P.C. or not? This not being the issue involved herein, the decision in the case of Nakula Sahu vs. Suresh Chandra Beherdolai and others as reported in 2016 (I) OLR – 624 has no application to the case at hand. Taking into consideration the decision of the Hon’ble Apex Court in the case of Muralilal, Appellant v. State of M.P., Respondent as reported in AIR 1980 S.C. 531 this Court finds, a party is precluded from applying exercise of power under Order 26 Rule 10 in existence of a report already there in exercise of same power. 7. Perused the impugned order. 8. For the observations made hereinabove that no such successive application under Order 26 Rule 9 & 10 of the C.P.C is entertain able in existence of a report in exercise of same power and for the decision of the Hon’ble Apex Court, this Court finds, the impugned order is not sustainable. As a consequence, this Court interfering with the impugned order vide Annexure-5, sets aside the same and thereby rejects the application under Order 41, Rule 27 of C.P.C read with Order 26, Rule 10 of C.P.C and U/s.151 of C.P.C. 9. The civil miscellaneous petition succeeds. No cost.