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2017 DIGILAW 124 (ORI)

Dolagobinda Rath v. Loknath Mishra

2017-01-27

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. This petition challenges the order dated 28.01.2016 passed by the learned Civil Judge (Jr. Divn.), Puri in C.S. No.13 of 2013. By the said order, learned trial court rejected the application of the plaintiffs under Order 26 Rule 9 C.P.C. for appointment of a survey knowing commissioner. 2. The petitioners as plaintiffs instituted the suit for permanent and mandatory injunction impleading the opposite party as defendant. The case of the plaintiffs is that the suit schedule property was the ancestral property. The same was recorded in the name of their father in the consolidation record of right published in the year 1987. The old building and eastern side boundary wall situated over the suit plot no.1738. The defendant is the eastern side neighbour having his house over plot no.1739. He forcibly tried to construct the building over the eastern side boundary wall. 3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement-cum-counter claim and seeking a decree for mandatory injunction directing the plaintiffs to remove projections in their eastern side wall. 4. While the matter stood thus, the plaintiffs filed an application under Order 26 Rule 9 C.P.C. for deputation of a survey knowing commissioner for measurement of plot nos.1378 and 1379. The defendant filed objection. Learned trial court came to hold that the evidence in the suit has not yet begun. It would be proper to take evidence on the issue so as to bring a clear picture regarding the dispute between the parties and also regarding the suit property. If evidence on record is found insufficient to arrive at a just decision in the suit then the survey knowing commissioner shall be issued. 5. Mr. Mohapatra, learned counsel for the petitioners submitted that the dispute pertains to the measurement of the suit land. Learned trial court committed a manifest illegality in rejecting the application under Order 26 Rule 9 C.P.C. holding that the evidence of the suit has not yet begun. The survey knowing commissioner can be appointed at any stage of the suit. 6. Per contra, Mr. Satyabrata Udgata, learned counsel for the opposite party, submitted that learned trial court has granted liberty to the plaintiff to move the application after adducing evidence from both the sides. There is no infirmity in the order passed by the court below. 7. The survey knowing commissioner can be appointed at any stage of the suit. 6. Per contra, Mr. Satyabrata Udgata, learned counsel for the opposite party, submitted that learned trial court has granted liberty to the plaintiff to move the application after adducing evidence from both the sides. There is no infirmity in the order passed by the court below. 7. 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. 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 Vrs. 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. 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.” 8. 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. 9. In view of the above, the order dated 28.01.2016 passed by the learned Civil Judge (Jr. Divn.), Puri in C.S. No. 13 of 2013 is quashed. The learned trial court shall decide the application for appointment of a survey knowing commissioner on merit. The petition is allowed. No costs.