The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jul-2024 15:33:48 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 403 of 2024 Dr. Kanchan Acharya .... Petitioner Jugal Kishore Das and others …. Opp. Parties -versus- Advocate for the parties For Petitioner : Mr. Banshidhar Baug, Advocate CORAM: JUSTICE K.R. MOHAPATRA
Decision
---------------------------------------------------------------------------- Heard and disposed of on 10.07.2024 ---------------------------------------------------------------------------- O R D E R 1. This matter is taken up through hybrid mode. 2. Order dated 5th February, 2024 (Annexure-10) passed by learned 4th Additional Civil Judge (Senior Division), Cuttack in CS(I) No.1072 of 2022 is under challenge in this CMP, whereby an application filed by the Plaintiff/Petitioner under Order XXVI Rule 9 CPC, has been rejected. 3. Mr. Baug, learned counsel for the Petitioner submits that the suit has been filed for permanent injunction, confirmation of possession as well as for recovery of possession, if the Plaintiff is dispossessed from the suit land during pendency of the suit. It is contended that the record of right stands in the name of the Plaintiff-Petitioner. During pendency of the suit, Defendants made an attempt to encroach upon land of the Petitioner for which an application under Order XXXIX Rules 1 and 2 CPC was filed. Along with the said CMP No. 403 of 2024 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jul-2024 15:33:48 // 2 // application, a petition under Order XXXIX Rule 3 CPC was also filed. Entertaining such application, learned trial Court dispensing with service of notice on Opposite Parties passed an ex-parte ad interim order of injunction. Defendants in violation of the same encroached upon a portion of the suit land and constructed a boundary wall. An application under Order XXXIX Rule 2-A CPC is also filed, which is pending for consideration. Defendants in their written statement do not dispute the title of the Petitioner over the suit land. Since the Defendants-Opposite Parties have encroached upon a portion of the suit land and there exists a boundary dispute between the parties in respect of the suit land and the land of Defendants- Opposite Parties. Thus, the Plaintiff-Petitioner in order to elucidate the matter in dispute filed an application under Order XXVI rule 9 CPC before commencement of the trial. The sole purpose for filing of such application before commencement of trial was that the party being aware of the Commissioner’s report would go for the trial. He also placed reliance upon the decision in the case of Mahendranath Parida vs. Purnananda Parida and Ors., reported in (64) 1987 CLT 722, wherein this Court at para-4 and 5 observed as under:- “4. ………No doubt, the provision confers a discretion on the Court. But the discretion, as it is well known, has to be exercised in a judicious and sound manner but not whimsically and capriciously. What is necessary to note in the provision is the expression ‘deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute………’ Therefore, where the Court considers a local investigation to be requisite and proper, ordinarily it should not decline to CMP No. 403 of 2024 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jul-2024 15:33:48 // 3 // exercise jurisdiction. It may decline jurisdiction if the motion is made at a belated stage, or if the motion is mala fide or in circumstances justifying refusal. A party has choice and a right to examine a survey knowing person after getting the identification or measurement privately done by him. For examining such witness it does not seek any privilege or indulgence. Where the controversy between the parties is the area of the land or identification or location of an object or the land, local investigation is necessary, essential, requisite or proper. It will not be a sound exercise of discretion without anything more to decline to appoint a commissioner. Very often decision of a case turns on the identification or determination of the area and evidence in relation thereto from its peculiar nature can only be had on the spot. (See Amulya Kumar Samaddar v. Ananda Charan Das, AIR 1933 Cal 475 and in P. Moosa Kutty, AIR 1953 Mad 717). In such cases local investigation and measurement are essential. Evidence in respect thereof can be laid by engaging a person qualified to conduct the investigation and measurement privately. But there are some difficulties. While doing the survey, the person has to take measurements from various points. In course of such investigation it may be necessary for him to enter upon land and premises of the other party and he may be resisted by the latter, whereas neither of the parties can resist the commissioner appointed by the Court from carrying out the writ. I am, therefore, of the view that where local investigation is considered necessary/Court should not ordinarily refuse to appoint a commissioner for the purpose of elucidating any matter in dispute between the parties. 5. 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 are aware of the report of the Commissioner and go to trial prepared. The party against whom the report may have gone may choose to adduce evidence in rebuttal. Hence, ordinarily in such type of cases local investigation should not be deferred to a stage after the closure of evidence. I do not mean thereby that in no circumstances can local investigation be sought after the evidence is closed. But ordinarily it should be done before the parties adduced evidence…...” (emphasis supplied) CMP No. 403 of 2024 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jul-2024 15:33:48 // 4 // He also placed reliance on another decision of this Court in the case of Ram Prasad Mishra v, Dinabandhu Patri and another, reported in (2012) Supp-II OLR 520, wherein this Court at para- 5 and 6 observed as under:- to in judge after referring “6. Learned Single the judgments of the Hon’ble Supreme Court in the case of Sri Prasanta Kumar Jena v. Choudhury Purna Ch. Das Adhikari, [99 (2005) CLT 720.] wherein this Court has ruled that the application under Order XXVI, 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 the cases of State of Uttar Pradesh v. Ram Sukhi Devi, [2005 (25) AIC 328 (SC) : 2004 (103) FLR 568 : (2005) 9 SCC 733 : AIR 2005 SC 284.] and Sri Krishna Tyres v. J.K. Industries Ltd., [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 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 v. Purnananda Parida, [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.” 3.1 He, therefore, submits that law is no more res integra on the issue of appointment of a Survey Knowing Commissioner, where in a suit there exists a boundary dispute. A Survey knowing Commissioner should be appointed at the threshold so that parties being aware of the Commissioner’s report go CMP No. 403 of 2024 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jul-2024 15:33:48 // 5 // prepared for trial of the suit and adduce evidence. Learned trial Court proceeded on a misconception that by filing an application under Order XXVI Rule 9 CPC, the Petitioner tried to collect evidence through Court. In view of the aforesaid case laws, it is clear that the observation made by learned trial Court is erroneous, as the report of the Survey knowing Commissioner would help the party to go prepared for trial. He, therefore, prays for setting aside the impugned order and to direct appointment of a Survey knowing Commissioner to demarcate the portion encroached upon by the Opposite Parties. 4. Heard Mr. Baug, learned counsel for the Petitioner. Perused the materials on record as well as the case laws cited. 5. Law is well-settled that there is no definite stage in a suit for appointment of a Survey knowing Commissioner. At any stage, the Court in exercise of its discretion can appoint a Survey knowing Commissioner to elucidate the matter in dispute depending upon the facts and circumstances of each case. But the party seeking appointment of such Commission should make an endeavour at the first instance to adduce evidence in support of his case. In the instant case, trial of the suit has not yet commenced. Except pleadings of the Plaintiff, there is no other material to arrive at a conclusion that there is in fact an encroachment by the Defendants over the suit land. There is also no material available on record to show that there is any impediment on the part of the Plaintiff-Petitioner to demarcate the suit land by a private Amin and adduce evidence. In the case of Rahul S Shah Vs. Jinendra Kumar Gandhi and CMP No. 403 of 2024 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jul-2024 15:33:48 // 6 // Ors., reported in (2021) 6 SCC 418, Hon’ble Supreme Court at para-37.1 has observed as under:- “37.1 A determination through commission- Upon the institution of a suit shall provide requisite assistance to the court to assess and evaluate to take necessary steps such as joining all affected parties as necessary parties to the suit. Before settlement of issues, the Court may appoint a Commissioner for the purpose of carrying out local investigation recording exact description and demarcation of the property including the nature and occupation of the property. In addition to this, the Court may also appoint a Receiver under Order XL Rule 1 to secure the status of the property during the pendency of the suit or while passing a decree.” In the instant case, there is neither any dispute with regard to description of the suit property nor there is any issue regarding the nature of possession of the parties. The Plaintiff alleges that the Defendants have encroached upon a portion of the suit land and constructed boundary wall over the same. Petition under Order XXXIX Rule 2-A CPC is also pending for alleged violation of the interim order of injunction. The onus of proof of alleged encroachment by the Opposite Parties is on the Petitioner. He has not yet entered the witness box to affirm the pleadings. There appears no impediment for the Plaintiff- Petitioner to measure the suit land vis-(cid:224)-vis alleged encroachment more particularly when there is no averment to that effect in the petition under Order XXVI Rule 9 CPC. At that stage, if a Survey knowing Commissioner is appointed, it would amount to collect evidence on behalf of the Plaintiff- Petitioner, which is not object and intent of the provision under Order XXVI Rule 9 CPC. CMP No. 403 of 2024 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jul-2024 15:33:48 // 7 // 6. It further appears that there is no legal impediment on the part of the Petitioner to get the land demarcated by a private Amin and adduce evidence. This Court, in the case of Santosh Kumar Parida Vs. Narayan Chandra Dash and others, reported in 2020 (II) ILR-CUT-629, observed as follows:- “6. The provision is silent about the stage at which such a commission should be issued. The power conferred under the provision can be exercised at any stage during pendency of the suit. In other words, the Court in its discretion may issue a commission at any stage of the suit, when it thinks necessary to do so for the purpose of elucidating any matter in dispute or for any other purposes prescribed in the Rule itself. There are divergent views with regard to the stage of a suit at which a Commission can be issued. There cannot be any straightjacket formula to prescribe any particular stage of the suit at which a Commission, if required, can be issued. It depends upon the facts and circumstances of each case. In the case of Ramakanta Nayak Vs. Bhanja Dalabehera, reported in (2015) Supp. II OLR 418, this Court held that issuance of a commission for local investigation is the discretion of the Court. While considering the prayer for issuance of a Commission, the Court must apply its mind to the facts and circumstances of the case and pass orders. Before issuance of a Commission, the Court must be satisfied that there is prima facie material in favour of the applicant for issuance of such a Commission. Again, in case of Ramakanta Nayak (supra), it is held that 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 cannot be cabined, cribbed or confined. Thus, the power of the Court to issue commission under the provision cannot be abridged or curtailed by prescribing a particular stage of the suit for issuance of a Commission for a particular purpose. 7. With utmost respect to the decision cited by Mr.Mishra, learned Senior Counsel, this Court is of the humble opinion that there are divergent views on the point of issuance of Commission at any particular stage of the suit. As discussed above, there cannot be any CMP No. 403 of 2024 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jul-2024 15:33:48 // 8 // particular stage for issuance of a Commission. It depends upon the facts and circumstances of each case. Hon’ble Division Bench has opined in the case of Ramprasad Mishra (supra) that when the dispute is with regard to demarcation of land or there is a boundary dispute, survey knowing commissioner should be appointed at the earliest so that the parties may lead evidence keeping in mind the report submitted by the Commissioner. The opinion of the Hon’ble Division Bench is suggestive taking into consideration the facts and circumstances of the said case and cannot have a universal application. Thus, I am of the humble opinion that the Court before whom the suit is pending is in the best position to determine at what stage of the suit a Commission, if any, is to be issued. The decision taken by the Court before whom the suit is pending, either refusing or granting issuance of commission, or for that purpose deferring consideration of such prayer, should not be interfered with lightly unless it is arbitrary or there is patent illegality or material illegality in the impugned order.” the prayer for In the aforesaid case law, this Court, took note of Ram Prasad Mishra (supra) and Ramakanta Nayak (supra). There cannot be any particular stage at which such a Commission should be issued. Power conferred under the provisions can be exercised at any stage during pendency of a suit. The Court can issue a Commission at any stage of the suit for the purpose of elucidating the matter in dispute. The Court before which the suit is pending, is in best position to take a decision as to whether a Commission is necessary to be issued and if so, at what stage. The party seeking appointment of a Survey Knowing Commissioner must make out a prima facie case to that effect. Thus, the party seeking appointment of a Commissioner must make an endeavour to bring on record the material which he seeks through a Commissioner. In a given CMP No. 403 of 2024 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 12-Jul-2024 15:33:48 // 9 // circumstance, when the party fails in its endeavour to bring on record such material, then only the Court may exercise its discretion for appointment of a Commissioner to elucidate the matter in dispute, if required. No such case is made out in the instant case. As such, I find no infirmity in the impugned order. 7. Accordingly, the CMP being devoid of any merit stands dismissed. s.s.satapathy (K.R. Mohapatra) Judge CMP No. 403 of 2024 Page 9 of 9