The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 311 OF 2023 Dharanidhar Rout Petitioner Mr. Amit Prasad Bose, Advocate …. -versus- Babaji Charan Rout …. Opp. Party CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 23.03.2023 01. 1. This matter is taken up through hybrid mode. 2. Order dated 6th March, 2023 (Annexure-1) passed by learned Civil Judge (Junior Division), Kendrapara in Civil Suit No.4133 of 2014 is under challenge in this CMP, whereby an application filed by the Plaintiff-Opposite Party under Order XXVI Rule 9 C.P.C., has been allowed. 3. Mr. Bose, learned counsel for the Petitioner submits that the suit has been filed for permanent injunction. The case of the Plaintiff-Opposite Party is that the suit plot No.1022 to an extent of Ac.0.084 decimals under Khata No.452 is the ancestral undivided homestead land of the Plaintiff, Defendant along with other co-sharers. But for the sake of convenience, parties are possessing different parcels of land without any partition by metes and bounds. The Plaintiff is constructing his three roomed pucca building and verandah over southern middle portion of the suit plot and the said building is constructed up to roof level. It is alleged that the Defendant is creating disturbance and is not allowing the Plaintiff to complete the construction. Hence, the Page 1 of 5 // 2 // Plaintiff filed the suit for the aforesaid relief. During pendency of I.A. No.3540 of 2014 filed under Order XXXIX Rules 1 and 2 C.P.C., the Plaintiff had filed a petition under Order XXXIX Rule 7 C.P.C. with a prayer for local inspection of the suit plot to report about the portion of the land on which the half constructed house of the Plaintiff is existing. The said petition was rejected. Being aggrieved, the Petitioner moved this Court in C.M.P. No.336 of 2016, which was disposed of with a liberty to the Petitioner to file a petition under Order XXVI Rule 9 C.P.C. after closure of the evidence. Accordingly, the petition under Order XXVI Rule 9 C.P.C. was filed by the Plaintiff-Opposite Party. 4. Mr. Bose, learned counsel for the Petitioner further submits that the Petitioner-Defendant in his evidence has also stated that there are two rooms and passage exists over the suit plot and the said construction is made by him up to lintel level. Although the Defendant-Petitioner raised objection to the effect that the stage of construction of the building raised by the Plaintiff is clear from his evidence and there is no need to depute a Survey knowing Commissioner, but learned trial Court allowed the application by deputing a Survey knowing Commissioner to answer the following: “1. How many half constructed building are standing over the suit plot No.1022? 2. How many rooms, verandah, stair cases and what level the house is constructed?” 5. It is his submission that the Plaintiff in his evidence at Paragraph-37 has deposed as under: “37. I cannot say when I have laid foundation up to plinth. I also cannot say when I have raised any further construction. The room is having 12ft. x 12 ft. size i.e. in Page 2 of 5 // 3 // Eastern side of half constructed house & western side 12 ft. x 12ft. & in between these two rooms, passage of having 6ft. breadth & 10 ft. length lies. There is adjoining verandah having length of 30ft. & breadth 12 ft.” 6. The Defendant in his cross-examination at Paragraph-65 has stated as under: “65. The new building is situated over 800 sq ft. which is constructed to only up to half. The length from west to east is 32 ft. and breadth from north to south is 25 ft. There are two rooms and a passage. One room is 11’6” x 12’6” and other one is 11’6” x 11’9”, the construction has been done up to lintal level which is not yet fixed. The construction has done up to 4 ft. from ground level. No construction was made after filing of this case. The construction started in Feb, 2006 till 20 Feb 06. It is not a pillar construction house about 12,000/- bricks were used in the entire construction. There are 6 doors and 4 windows, 2 in room and 1 in another room and one towards varandha.” 7. From the evidence, it is crystal clear that the construction has been made up to lintel level, which is not yet fixed. Thus, there is ample evidence available on record to ascertain the level of construction of the house made by the Plaintiff. In that view of the matter, no Survey knowing Commissioner should be deputed to find out the truth. 8. It is his submission that learned trial Court erroneously finding that there is no sufficient evidence regarding how many half constructed building exist on the suit land and whether the half constructed building has been build up to roof level or lintel level, directed deputation of a Survey knowing Commissioner. He further submits that there is only one building, which is being constructed by the Plaintiff. So question No.1 is not necessary to be answered for just adjudication of the suit. Since the parties Page 3 of 5 // 4 // have led evidence in detail, learned trial Court should dispose of the suit by scrutinizing the same. He, therefore, prays for setting aside the impugned order under Annexure-1. 9. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, this Court finds that the question No.1 is not relevant for just adjudication of the suit. Further the Defendant in his evidence has stated that the construction of the house has been done up to lintel level, which is not yet fixed. It also appears from the evidence of the Plaintiff that he has been thoroughly cross-examined on the material particulars of construction. Thus, it is not clear, as to what, more is required for adjudication of the suit, which is not available in evidence and to be answered by the Survey knowing Commissioner. 10. The Plaintiff in Paragraph-39 of his deposition stated that ‘The description of my constructed house described in ‘B’ schedule of my plaint is wrong and incorrect’. Thus, there is every likelihood that the Plaintiff may be making an endeavour to overcome the lacunae in his evidence through the report of the Survey knowing Commissioner. The report of the Commissioner is only a piece of evidence to be considered along with other evidence on record. But, the power conferred on the Court should not be exercised in a routine manner on mere asking for it. Learned trial Court appears to have ignored these aspects while adjudicating the petition under Order XXVI Rule 9 C.P.C. 11. In that view of the matter, this Court feels that the petition under Order XXVI Rule 9 C.P.C. requires fresh consideration by Page 4 of 5 // 5 // learned trial Court giving opportunity of hearing to the parties concerned. 12. Accordingly, the impugned order under Annexure-1 is set aside and the matter is remitted back to learned Civil Judge (Junior Division), Kendrapara to adjudicate the petition under Order XXVI Rule 9 C.P.C. afresh taking into consideration the evidence available on record and what more material is required for just adjudication of the suit, which is not available on record. 13. With the aforesaid observation and direction, the CMP is disposed of. 14. Since the CMP is disposed of without issuing notice to the Opposite Party, he is at liberty to seek for variation of this order, if he feels aggrieved. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5