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2017 DIGILAW 168 (ORI)

Nayana Manjari Sahoo v. Rajakishore Sahoo

2017-02-15

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 2.9.2016 passed by the learned Addl. Civil Judge (Junior Division), Narasinghpur in I.A No.06 of 2016 arising out of C.S. No.20 of 2016 whereby the learned trial court rejected the application of the plaintiff under Order 26 Rule 9 CPC holding, inter alia, that the appointment of commission can only be considered after closure of evidence. 2. The petitioner as plaintiff instituted C.S. No.20 of 2016 in the court of the learned Addl. Civil Judge (Junior Division), Narasinghpur for permanent injunction impleading the opposite parties as defendants. The case of the plaintiff is that she is the owner of an area of Ac.0.125 dec. appertaining to Khata No.574/376, Plot No.1865/2948 of Mouza-Paikapadapatna in the district of Cuttack. The defendant no.1 is the adjacent owner of the suit land towards the northern side. The suit land is bounded by pillars. Taking advantage of the absence of the plaintiff, defendant no.1 removed the boundary pillars and stacked the materials to build a house. The plaintiff applied for demarcation of the suit land in Misc. Case No.12 of 2016 before the Tahasildar, Narasinghpur. The defendant no.1 did not allow the amin to measure the land. Defendant no.1 continued the construction work forcibly and unauthorisedly encroaching upon the suit land. 3. Pursuant to issuance of summons, defendants entered appearance and filed a written statement denying the assertions made in the plaint. The specific case of the defendants is that they have not encroached upon any portion of the suit land. While the matter stood thus, the plaintiff filed an application under Order 26 Rule 9 CPC to depute an amin commissioner for identification and demarcation of the suit land. It is stated that she made an application to the Tahasildar, Narasinghpur to depute an amin to demarcate the suit land. The defendants did not cooperate for which the amin was unable to identify the land. The defendants filed an objection to the same. Learned trial court came to hold that no evidence has been adduced by the parties. Appointment of commission can be considered after closure of evidence, when the court finds it difficult to pass effective decree on the existing evidence. Held so, learned trial court rejected the application. 4. Heard Mr. Mantry, learned counsel for the petitioner and Mr. Pradhan, learned counsel for the opposite parties. 5. Mr. Appointment of commission can be considered after closure of evidence, when the court finds it difficult to pass effective decree on the existing evidence. Held so, learned trial court rejected the application. 4. Heard Mr. Mantry, learned counsel for the petitioner and Mr. Pradhan, learned counsel for the opposite parties. 5. Mr. Mantry, learned counsel for the petitioner, argued with vehemence that the learned trial court fell into patent error in holding that the commissioner can be appointed after closure of evidence. He submitted that the commissioner can be appointed at any stage of the suit. Since the dispute pertains to identification of the land, learned trial court has committed manifest illegality in rejecting the application. 6. Per contra, Mr. Pradhan, learned counsel for the opposite parties, submitted that since the learned trial court has observed that the commissioner can be appointed after closure of evidence, the order requires no interference. 7. Order 26 Rule 9 provides as follows; “9. 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.” 8. On an interpretation of the said Rule, 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 Vrs. Dinabandhu Patri and another. 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 Vrs. 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 Vrs. 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 vs. 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.” 9. In view of the authoritative pronouncement of this Court in the case of Bhabesh Kumar Das (supra), the order dated 2.9.2016 passed by the learned Addl. Civil Judge (Junior Division), Narasinghpur in I.A No.06 of 2016 arising out of C.S. No.20 of 2016 is quashed. The learned trial court shall decide the application for appointment of commission on merit. The petition is allowed. No costs.