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2017 DIGILAW 307 (ORI)

Kamala Jena v. Sabitri Devi

2017-03-21

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. This petition challenges the order dated 16.12.2014 passed by the learned Civil Judge (Senior Division), Jajpur Road in C.S. No. 124 of 2012. By the said order, the learned trial court rejected the application of the plaintiffs under Order 26 Rule 9 CPC for deputation of a Civil Court Commissioner. 2. Ghana Jena, predecessor-in-interest of the petitioners, as plaintiffs instituted the suit for declaration of right, title and interest, permanent injunction and demarcation of suit land impleading the opposite parties as defendants. During pendency of the suit, he died whereafter the petitioners have been substituted. 3. Pursuant to issuance of summons, the defendants entered appearance and filed a written statement denying the assertions made in the plaint. While the matter stood thus, the plaintiffs filed an application under Order 26 Rule 9 CPC for appointment of Civil Court Commissioner. It is stated that the defendants in their written statement have categorically denied that they have encroached upon any land of the plaintiffs. According to the defendants, there exists a passage to the south of their purchased land. In fact there exists no passage on the southern side of the land of the defendants. The specific case of the plaintiffs is that defendants have encroached upon a portion of the suit schedule land. The defendants filed objection to the same. It is stated that they have not encroached upon the land. The petition is premature. Further the suit has not been filed for demarcation of the suit land. The learned trial court held that the application is premature and rejected the same. 4. Heard Mr. Amit Prasad Bose, learned counsel for the petitioners. None appears for the opposite parties in spite of valid service of notice. 5. In Bhabesh Kumar Das v. Mohan Das Agrawal, 2015 (II) CLR 603, this Court held as under: “In the case of Prasanta Kumar Jena Vrs. 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. 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, 5 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. 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.” 6. As stated above, the suit has been filed for declaration of right, title and interest, permanent injunction and demarcation of the suit land. The dispute pertains to demarcation of the suit land. In view of the same, the learned trial court is not justified in rejecting the application for deputation of a Civil Court Commissioner. 7. The petition is allowed. As stated above, the suit has been filed for declaration of right, title and interest, permanent injunction and demarcation of the suit land. The dispute pertains to demarcation of the suit land. In view of the same, the learned trial court is not justified in rejecting the application for deputation of a Civil Court Commissioner. 7. The petition is allowed. The learned trial court shall depute a survey knowing Commissioner subject to compliance of formalities by the plaintiffs.