The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No. 629 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Bidulata Prusty …. Petitioner -versus- Kalpana Chattarjee & Ors. …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. B.Routray, Advocate For Opposite Parties
Legal Reasoning
: Mr. A.Das, Advocate for O.P.1 to 4 Mr. K.Prajwal, Advocate for O.P.8 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 25th September 2025 B.P. Routray, J. 1. Heard Mr. B.Routray, learned Advocate for the Petitioner, Mr. A.Das, learned counsel for Opposite Parties 1 to 4 and Mr. K.Prajwal, learned counsel for Opposite Party No.8. C.M.P. No.629 of 2025 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26 2. Present petitioner, who is the Plaintiff in C.S. No.07 of 2017 pending before the Court of learned Civil Judge (Junior Division), Jajpur, has filed the suit with prayer for declaration of his easementary right over the suit scheduled property. The Defendants (present Opposite Parties) appeared in the suit and contested the same. The Plaintiff after adducing her evidence and examining three witnesses on her behalf, filed a petition under Order 26 Rule 9 of CPC praying to depute the Civil Court Commissioner on the questionnaires given in her petition dated 3rd October 2024. A copy of said petition under Annexure-4 reveals the questionnaires as follows:- “Questions to be answered 1) Whether any obstruction is being caused at spot on the suit land to pass over by the plaintiff and his family members, if so what are the obstructions ? 2) The commission is to identify or locate the suit land at spot by measurement of suit land and to point out the obstruction whatever made on spot over the suit land? 3) Commissioner is to give a Topography of the suit land with showing obstruction made over the suit land?” C.M.P. No.629 of 2025 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26 3. The Defendants objected the prayer that the Plaintiff is trying to improve her evidence through deputation of the Civil Court Commissioner which she failed to produce in course of her evidence. 4. The learned Trial Court upon consideration of the prayer of the Plaintiff, rejected the same vide impugned order dated 4th March 2025 on the ground that the Civil Court Commissioner cannot be appointed to assist the party to get evidence. It is further observed by learned Trial Court that since there is no dispute with regard to the identification of the suit land and there is no ambiguity or confusion as per the contentions of the parties with regard to identification of the same, no need is there to depute Civil Court Commissioner. 5. It is submitted by Mr. Routray, learned counsel for the Petitioner that as per the contentions of the parties since the situation and topography of the suit land is varying, there is a need to identify the suit land by deputing Civil Court Commissioner. C.M.P. No.629 of 2025 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26 6. Conversely, Mr. Das, learned counsel for Opposite Parties 1 to 4 submit that by making such prayer the Plaintiff is trying to develop her case and to get evidence additional to her evidence already adduced on record. 7. Admittedly, the suit is at the stage of taking evidence from the side of the Defendants. The Plaintiff has already adduced her evidence. The power of the Court under Order 26 Rule 9 of CPC is undoubtedly discretionary in order to either elucidating the subject of dispute as the Court thinks appropriate to make such investigation or for any other purpose as envisaged under the provisions of Order 26 Rule 9. The power of the Court under aforesaid provision is discretionary and the Court has a discretion to order local investigation or not. 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. Cases of boundary disputes and disputes about the identity of lands are instances when a Court should order a local investigation under this rule. 8. Further in Ramakanta Naik and Others v. Bhanja Delabehera, 2015 AIR CC 1724 (ORI), this Court have held that C.M.P. No.629 of 2025 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26 issuance of a commission for local investigation is the discretion of the court and while considering such prayer for appointment of the commission the court must apply its mind to the facts and circumstances of the case, and no straight jacket formula can be laid down for the purpose. But before issuance of commission the court must be satisfied that there is a prima facie case in favour of the applicant. 9. In the case at hand, the suit land is measuring Ac.0.30 decimals as per the description given in the schedule of property. According to the contentions of Defendants No.1 to 3 and Defendant No.7 the description of the suit land differs from the description given by the Plaintiff. Further, it is the case of the Plaintiff that the Defendants have put obstructions on the way of the Plaintiff in respect of her right of passage over the suit land which needs to be ascertained through Civil Court Commissioner. 10. As seen from the questionnaires presented by the Petitioner in her petition under Annexure-4 that the questionnaires include a report on the topography of the suit land with regard to obstructions tendered by the Defendants. It is true C.M.P. No.629 of 2025 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26 that the Plaintiff has prayed for declaration of her easementary right for passage over the suit land and in alternative for a direction to Defendants No.1 to 3 and 7 to allow the Plaintiff and her family members to use the suit land as their passage with further direction to the Defendants to remove the obstructions made by them over the suit land. When the Plaintiff has already adduced the evidence from her side and has examined three witnesses on her behalf, making prayer under Order 26 Rule 9 at this stage to get report on the identification of the suit land as well as the obstructions made over by the Defendants over the same and to ascertain the topography is definitely intended to collect the evidence through the Civil Court Commissioner. 11. The description of the suit land as given in the schedule at the foot of the Plaint is clear with measurement in North-South and East-West directions. Therefore, it is seen that the identification of the suit land was never in dispute according to the Plaintiff as described in the plaint schedule and so the finding of the Trial Court that there is no manner of dispute with regard to identification, location or measurement of the land cannot be faulted with. This is so because the plaint schedule itself gives C.M.P. No.629 of 2025 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26 clear description of the suit land with its measurement on North- South and East-West sides. Such measurement as given in the plaint schedule is never stated by the Plaintiff to be disputed. So it is found that the description and identification of the suit land as well as its measurement is free from any cloud of ambiguity. So the question of identification and measurement of the same through the Civil Court Commissioner is unwarranted. 12. So far as the report sought for through the Commission with regard to obstructions on the suit land, the Plaintiff cannot shift her burden to prove the same through the Civil Court Commissioner. When she specifically has prayed in the plaint to remove all such obstacles from the suit land she cannot pray to get statements of obstructions over the suit land through the report of Civil Court Commissioner. If on such question the Civil Court Commissioner would be deputed, it would certainly amount to collection of evidence at the instance of the Plaintiff. This is not at all permissible within the scope of provisions under Order 26 Rule 9 of CPC. Similarly, the report of topography on the suit land is never a matter touching the dispute between the parties as per the plaint averments. So the intention of the C.M.P. No.629 of 2025 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26 Plaintiff to get the same in the midst of her evidence could not be allowed to shift the burden from the Plaintiff to bring the obstructions, if any, on the suit land through the Civil Court Commissioner. 13. As stated above, the principles under Order 26 Rule 9 has been settled that the power to appoint a Civil Court Commissioner is discretionary and such local investigation should not be directed to collect evidence on behalf of the parties. Therefore, on analysis of the entire materials and the scope of provision under Order 26 Rule 9 of CPC, no reason is found to interfere with the impugned order. 14.
Decision
In the result, the CMP is dismissed. (B.P. Routray) Judge S.Das/Sr.Steno C.M.P. No.629 of 2025 Page 8 of 8