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2017 DIGILAW 152 (ORI)

Pratima Gochhi v. Harekrushna Das

2017-02-08

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. This petition challenges the order dated 10.4.2015 passed by the learned District Judge, Khurda at Bhubaneswar in F.A.O. No.150 of 2013. By the said order, the learned District Judge dismissed the appeal and confirmed the order dated 28.10.2013 passed by the learned Civil Judge (Jr. Division), Bhubaneswar in I.A.564 of 2013, whereby and where under, the parties have been directed to maintain status quo. Simultaneously, the learned appellate court directed the learned trial court to depute an Amin Commissioner and submit the report. 2. The petitioner as plaintiff instituted C.S.No.502 of 2013 in the court of the learned Civil Judge (Junior Division), Bhubaneswar for permanent injunction impleading the opposite parties as defendants. During pendency of the suit, she filed an application under Order 39 Rule 1 and 2 to restrain the opposite parties not to make any permanent construction. By order dated 28.10.2013, the learned trial court directed the parties to maintain status quo. Assailing the same, defendant-opposite party no.1 filed FAO No.150 of 2013 before the learned District Judge, Khurda at Bhubaneswar. By judgment dated 10.4.2015, the learned appellate court dismissed the appeal but then directed the learned trial court to depute an Amin Commissioner for measurement of the land and to submit the report. 3. Mr. B.N.Tripathy, learned Advocate for the petitioner submits that the learned appellate court has committed an illegality in directing the learned trial court to appoint Amin Commissioner when no application was filed by the parties to the suit. He further submits that the Court hearing an application under Order 39 Rule 1 and 2 C.P.C. can not appoint Amin Commission for measurement of the land under Order 26 Rule 9 C.P.C.. He further submits that the defendants have not filed the written statement. The learned appellate court has not assigned any reasons for appointing the Commission and as such the order is bad in law. 4. Per contra, Mr.P.K.Das, learned Advocate for opposite party no.2 submits that pursuant to the direction of the learned appellate court, an Amin Commissioner was appointed. He submitted the report on 1.2.2016. The petitioner has filed objection. After hearing the parties, the learned trial court accepted the report. Thereafter he was subjected to cross-examination. The report was accepted. Thus, the order requires no interference. 6. Appointment of Commission is the discretion of the Court. He submitted the report on 1.2.2016. The petitioner has filed objection. After hearing the parties, the learned trial court accepted the report. Thereafter he was subjected to cross-examination. The report was accepted. Thus, the order requires no interference. 6. Appointment of Commission is the discretion of the Court. In any suit in which the Court deems a local investigation, the Court may appoint Commission. Satisfaction of the Court is a precondition for appointment of Commission. The order must be passed after due application of mind and supported by reasons. But then the Court while hearing the appeal against the order passed by the learned trial court under Order 39 Rule 1 and 2 C.P.C. de hors its jurisdiction in appointing Amin Commissioner under Order 26 Rule 9 C.P.C. By a laconic order, the learned appellate court appointed an Amin Commissioner under Order 26 Rule 9 C.P.C.. 7. After the report of the Commissioner was accepted, the petitioner approached this Court. In view of the same, this Court is not inclined to interfere with the order. The petition is dismissed.