Orissa High Court
Manoj Mohapatra vs Ananda Chandra Bidhar And Others .... ... on 17 September, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not VerifiedDigitally SignedSigned by: SASANKA SEKHAR SATAPATHYDesignation: AR-cum-Senior SecretaryReason: AuthenticationLocation: HIGH COURT OF ORISSA CUTTACKDate: 18-Sep-2024 11:38:11 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 750 of 2024 Manoj Mohapatra .... Petitioner Mr. Amitav Tripathy, Advocate -versus- Ananda Chandra Bidhar and others .... Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA ORDER
Order No. 17.09.2024 1. 1. This matter is taken up through hybrid mode.
2. Order dated 8th May, 2024 (Annexure-1) passed in CS No.236 of 2013 is under challenge in this CMP, whereby learned Civil Judge (Senior Division), Nayagarh allowed an application under Order XXVI Rule 9 CPC filed by the Plaintiffs/Opposite parties for appointment of Civil Court Commissioner to measure the suit property.
3. Mr. Tripathy, learned counsel submits that Defendant No.2 as Petitioner filed this CMP. It is his submission that the suit has been filed for declaration of right, title, interest and recovery of possession alleging that the Defendants have encroached upon the suit land. After closure of evidence from the both sides, Plaintiff/Opposite party No.1 sought for three adjournments and then filed an application under Order XXVI Rule 9 CPC for measurement of the suit property. It is his submission that since the evidence from the both sides has already been closed no such application is maintainable in absence of any specific plea that evidence available on record is insufficient or ambiguous for just decision in the suit. Learned
Signed by: SASANKA SEKHAR SATAPATHYDesignation: AR-cum-Senior SecretaryReason: AuthenticationLocation: HIGH COURT OF ORISSA CUTTACKDate: 18-Sep-2024 11:38:11
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trial Court also has not recorded any finding as to whether materials available on record are ambiguous or insufficient to elucidate the matter in dispute in the suit. In view of the above, the impugned order is not sustainable and is liable to be set aside more particularly when the evidence from both the sides is closed. He also placed reliance upon the order dated 22nd April, 2021 passed in CMP No.285 of 2014, wherein, this Court relied upon the ratio in the case of Ram Prasad Mishra Vs. Dinabandhu Patri and another, reported in 2012 (Supp.II) OLR 520, wherein, it is held as under :-
"6. Learned Single Judge after referring to the judgments of the Hon'ble Supreme Court in the case of Sri Prasanta Kumar Jena v. Choudhury Purna Ch. Das Adhikari, reported in 99 (2005) CLT 720, wherein this Court has ruled that the application under Order 26 Rule 9 of the Code of Civil Procedure be considered only after closure of the evidence when it finds difficult to pass an effective decree on the existing evidence. Further, reliance is also placed on judgments of the Hon'ble Supreme Court in the case of State of Uttar Pradesh and others Vs. Ram Sukhi Devi, AIR 2005 SC 284 and Sri Krishna Tyres and another Vs. J.K.Industries Ltd. and another, 2009 (4) Supreme 16, in support of the proposition of law that the final relief sought for in the suit is for demarcation of the of the case land, so an interim order cannot be granted in favour of the plaintiff to demarcate the suit land during pendency of the suit and such an order can only be passed after final adjudication of the suit. Relying on the above decisions, learned Single Judge has set aside the order ignoring the decision of this Court in the case of Mahendranath Parida Vs. Purnananda Parida and others, reported in AIR 1988 Ori 248 relied on by learned counsel for the plaintiff-appellant, wherein this Court has 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 with all preparedness.
7. The party against whom, a report might have given may choose an evidence in rebuttal. Therefore, further it is
Signed by: SASANKA SEKHAR SATAPATHYDesignation: AR-cum-Senior SecretaryReason: AuthenticationLocation: HIGH COURT OF ORISSA CUTTACKDate: 18-Sep-2024 11:38:11
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in the said case observed that ordinarily in such type of cases, local investigation should not have been deferred after closure of the evidence. Placing reliance on the said decision, having regard to the pleading of the parties learned trial Judge is right in allowing appointment of survey knowing commissioner. The same should not have been interfered with by the learned Single Judge applying various decisions referred to supra and the decision in 2006 (II) OLR 43 which decision has no application to the fact situation."
He, therefore, submits that the impugned order is liable to be set aside.
4. Taking into consideration the submission of Mr. Tripathy, learned counsel for the Petitioner and on perusal of the impugned order, this Court finds that no good reason has been assigned by learned trial Court to appoint a Survey knowing Commissioner entertaining an application under Order XXVI Rule 9 CPC filed by the Plaintiff at the stage of argument. No finding has been recorded by learned trial Court as to whether the evidence available on record is insufficient or there is any ambiguity with regard to identity or area of the land in question. An application under Order XXVI Rule 9 CPC should not be allowed in a routine manner on mere asking for it. The Court has to exercise its discretion assigning sufficient reason. The exercise must be done with due care so that the Court does not become an instrument to collect evidence on behalf of a party. The party seeking for appointment of a Survey knowing Commissioner under Order XXVI Rule 9 CPC has to make out a case he is incapable of adducing evidence to elucidate the matter in dispute. None of the requirements as stated above are discussed in the impugned order. Hence, the same is not sustainable. Since the
Signed by: SASANKA SEKHAR SATAPATHYDesignation: AR-cum-Senior SecretaryReason: AuthenticationLocation: HIGH COURT OF ORISSA CUTTACKDate: 18-Sep-2024 11:38:11
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suit is of the year 2013, issuance of notice in the matter to Plaintiffs/Opposite Parties will further delay in disposal of the suit. Hence, this Court, taking into consideration the nature of order proposed to be passed in this CMP, proceeds to dispose of the CMP dispensing with service of notice to Plaintiff/Opposite Party No.1.
5. In view of the discussions made above, the impugned order dated 8th May, 2024 (Annexure-1) passed by learned Civil Judge (Senior Division), Nayagarh in CS No.236 of 2013 is set aside and the matter is remitted to learned trial Court for fresh adjudication of the petition giving opportunity of hearing to the parties concerned and keeping in mind the observations made herein above.
6. Since the suit is of the year 2013, learned trial Court should make an endeavour to see that the petition under Order XXVI Rule 9 CPC is disposed of at an early date.
7. The CMP is disposed of accordingly.
8. Since the CMP is disposed of without issuing notice to the contesting Opposite Party No.1, he is at liberty to seek for variation of this order, if he feels aggrieved.
Issue urgent certified copy of the order on proper application.
(K.R. Mohapatra) Judge
s.s.satapathy
