The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 12:18:42 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.306 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Manoj Mohapatra …. Petitioner -versus- Ananda Chandra Bidhar and Others … Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
issue conclusively. This Court in the case of Santosh Kumar Parida vs. Narayan Chandra Dash and others, 2020 (II) ILR-CUT-629, has observed as follows:- CMP No.306 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 12:18:42 “5.1. Thus, it is apparent that in a suit, the Court may issue a commission to any person for the purpose of ‘elucidating any matter in dispute’ and for all other purposes mentioned in the provision itself. According to Oxford dictionary, the word ‘elucidate’ means ‘to throw light or to make clear, to explain, to remove obscurity from and render intelligible or to illustrate’. According to Cambridge dictionary, it means ‘to explain something or make something clear’. According to Chambers dictionary, it means ‘to make lucid or clear or to throw light upon, to illustrate, making clear, explanatory’. Thus, from the reading of the provision it is manifest that if a matter in dispute in a suit needs any clarification or further explanation, the Court may consider issuance of a commission for that purpose. The language employed in the provision makes it abundantly clear that the Court exercises its judicial discretion while making order for issuance of a commission. But, it must be kept in mind that all matters in dispute in a suit cannot be elucidated through issuance of a commission. Thus, the party seeking issuance of a Commission must establish a prima facie case to invoke the provision. He cannot use the Court to collect evidence on his behalf in the guise of invoking the power of the court under the provision, unless the occasion so arises. Thus, the party to the suit seeking issuance of a commission must, at the first instance, make an endeavor to lead evidence to prove his case on the issue involved. Only when the evidence or material on record is insufficient or needs clarification or the parties are unable to lead evidence on any particular matter in dispute or it becomes expedient to make a local investigation by a Commission to lead further evidence in the matter, to pass CMP No.306 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 12:18:42 an effective decree, then the Court has the power to exercise its discretion under the provision and issue such a commission for any purpose mentioned in the provision itself. 7. In the instant case where the prayer of the plaintiff is specific about encroachment of the land to such extent with details given thereof, and the learned trial court after going through the evidences of both parties is of the opinion that the materials are insufficient before the court with regard to encroached portion of the land, the direction for appointment of Commissioner for local investigation cannot be termed as illegal which is within the discretion of the trial court. 8. So far as the allegation leveled that by appointing Commissioner the plaintiffs are intending to collect evidence in their favour, the same is not found correct on the face of record as the direction of learned trial court is specific for measuring the suit land showing area of the holdings by both parties carving out the encroached portion. In other words, the trial court has intended to get the encroached portion being carved out for decision on the subject in issue in the suit. Thus, this court does not see any infirmity in the impugned order. CMP No.306 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 12:18:42 9. Accordingly the CMP is dismissed. M.K. Panda/P.A ( B.P. Routray) Judge CMP No.306 of 2025 Page 6 of 6
Arguments
: Mr. Amitav Tripathy, Advocate For Opp. Parties : Mr. S.K. Mishra, senior counsel along with Ms. S. Sahoo, counsel for Opposite Parties 1 to 3 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 24th November, 2025 B.P. Routray, J. 1. Heard Mr. A. Tripathy, learned counsel for the Petitioner and Mr. S.K. Mishra, learned senior counsel along with Ms. S. Sahoo, learned counsel for Opposite Parties 1 to 3. 2. Present CMP is directed against order dated 29th January, 2025 of learned Civil Judge (Sr. Division), Nayagarh passed in C.S. CMP No.306 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 12:18:42 No.236 of 2013, wherein the prayer of the plaintiff under Order 26, Rule 9 C.P.C. has been allowed. 3. Present opposite parties 1 to 3 filed the suit praying for declaration of right, title, interest along with other reliefs including recovery of possession of the encroached land. The details of the encroached land have been given in the prayer portion of the plaint. After evidences were adduced from both sides and when the suit was posted for argument, the plaintiff filed a petition under Order 26 Rule 9 C.P.C. praying for issuance of Civil Court Commissioner to make such investigation and report regarding encroached land. 4. In the impugned order dated 29th January, 2025, the learned trial court has specifically given the finding that the plaintiff or the defendant could not be able to bring any evidence about the alleged encroached portion of the land and therefore, in the opinion of the trial court, in order to arrive at a conclusive opinion in the facts and circumstances of the case the appointment of Amin Commissioner with direction to investigate and report about the matter with all data and his findings is just and proper. So the learned trial judge directed the Amin Commissioner to investigate and report showing the area of the parties with plot numbers appertaining to suit land and CMP No.306 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 29-Nov-2025 12:18:42 measurement of their respective holdings by separately carving out the encroached portion. 5. It is submitted by Mr. Tripathy that such order of the learned trial court directing the Amin Commissioner to report about the suit land would amount to collect evidences in favour of the plaintiffs since they have failed to clarify in their evidence about any encroachment made by the defendant. 6. Law is settled that the court has ample discretion in matter relating to appointment of Civil Court Commissioner as per Order 26 Rule 9 C.P.C. in order to elucidate the subject in dispute. As per said rule, the Court has discretion to order local investigation. The object of local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot. In an issue involving encroachment, if the oral evidence is found insufficient, it is always desirable to get the fields measured by an expert and find out the exact area encroached upon. Oral evidence may not prove such an