Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Nov-2025 10:41:33 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.760 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Manmohan Senapati and others … Petitioners Pyarimohan Senapati … Opposite Party -versus- Advocate(s) appeared in this case:- For Petitioners
Legal Reasoning
: Mr.B.Baivab, Advocate For Opposite Party : Ms.M.Pal, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 6th November, 2025 B.P. Routray, J. 1. Present CMP is directed against the order dated 6th July 2024 of learned Civil Judge (Sr.Division), Bhubaneswar passed in C.S. No. 2028 of 2021, wherein the prayer of the plaintiff for appointment of Commissioner under Order 26 Rule 9 of the CPC has been rejected. 2. Heard Mr.Baivab, learned counsel for the Petitioners and Ms.Pal, learned counsel for the Opposite Party. CMP No.760 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Nov-2025 10:41:33 3. Present Petitioners are the plaintiffs who filed the suit praying for partition claiming 1/4th share over the suit property. For better appreciation, the prayer made in the plaint is reproduced below: “A) Let a preliminary decree of partition be passed allotting one fourth share of the suit schedule property in favour of each of the present plaintiffs by metes and bounds failing which the same may be partitioned by deputing a Survey Knowing Commissioner. B) And to grant any other relief as deem fit and proper in the circumstances of the case. C) Cost of the suit may be decreed in favour of the Plaintiffs.” 4. It is submitted on behalf of the plaintiffs that since the defendant is occupying the entire suit schedule property and rented out part of the same for commercial shop room and collecting the rent thereof, the plaintiffs filed an application under Order 40 Rule 1 of the CPC for appointment of receiver in respect of rent amount collected, which is stated to be still pending before the learned trial court. In the meantime, the plaintiffs filed a petition under Order 26 Rule 9 of the CPC praying for appointment of Civil Court Commissioner in order to ascertain the exact amount of rent paid by the occupiers for running such commercial establishment in the said premises. 5. It is further submitted by Mr.Baivab for the plaintiffs that since it is not possible on the part of the plaintiffs to ascertain the accurate CMP No.760 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Nov-2025 10:41:33 amount of rent collected by the defendant in respect of the suit property, a Commissioner is required to be deputed to ascertain the same from the tenants. 6. In the opinion of the learned trial court, the Commissioner cannot be appointed to get evidence in favour of the plaintiffs and apart from that, the Commissioner is not a technical expert to ascertain the rent amount which would be a matter of evidence to be adduced from both sides. 7. It is settled that a party cannot use power of the Court under Order 26 Rule 9 of the CPC to collect evidence for him. It is clear that under Order 26 Rule 9 of the Code of Civil Procedure, the Court has the discretion to order local investigation. The object of the 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. The cases of boundary dispute and disputes about the identity of lands are instances, when a Court should order a local investigation. In Ramakanta Naik and Others v. Bhanja Delabehera, 2015 AIR CC 1724 (ORI), this Court have held that issuance of a commission for local investigation is the discretion of the court and while considering such prayer for appointment of the CMP No.760 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Nov-2025 10:41:33 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. In Harihar Jena vrs. Sulochana Sahoo and others, 2013 (Supp.-II) OLR – 407, it is stated that, “Certainly the power vested on the Court under Order, 26, Rule 9 of the C.P.C. with regard to the appointment of the Commissioner is the discretion of the Court but at the same time the settled position of law is that the object of local investigation is not to collect evidence for a party and such discretionary power cannot be exercised to assist a party by appointing Commissioner for local investigation. Such discretion can be used by the Court where the Court finds difficult to pass an effective decree on the existing evidence.” 8. Looking to the petition filed in the case at hand, it is seen that no questionnaire has been specifically formulated in the petition under Order 26 Rule 9 of the CPC to be answered by the Commissioner. What is prayed by the plaintiffs that the Commissioner should be deputed to make local investigation to discover the actual rent amount paid by the tenants to the defendants situating over the suit land. This CMP No.760 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Nov-2025 10:41:33 otherwise means that the Commissioner will enquire about the rent amount paid by the tenants and received by the defendant, which is of course beyond the scope of relief prayed by the plaintiffs. This being a suit for partition simplicitor, the admitted possession of the defendant over the suit house cannot be termed as unlawful and thus the question of any profit earned by the defendant due to possession over the suit property does not arise at all. The finding of the trial court is thus found justified. 9. As stated above, the plaintiffs have not prayed for any share in the income earned by the defendant by letting out some commercial shops situating in the suit house. Therefore, when the plaintiffs have not asked for share in the profits received by the defendant by virtue of his possession over the suit house, the question of appointment of Commissioner in order to determine the actual rent amount paid by the tenants, if any, is unwarranted. The intention of the plaintiffs to count the amount of rent paid by such tenants, as the profit earned by the defendant, in respect of the suit property through the Commissioner therefore is uncalled for. First of all, it would be required to consider by way of evidence whether any such shop house has been rented in the suit house and all such matters regarding rent of CMP No.760 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Nov-2025 10:41:33 shop rooms in the suit house are to be considered on the basis of evidences produced on record, for which deputation of a Civil Court Commissioner is not at all necessary. Accordingly, the order of the learned trial court is confirmed being found without any flaw thereof. 10. The CMP is dismissed. Judge ( B.P. Routray) C.R.Biswal, A.R.-cum-Sr.Seretary CMP No.760 of 2025 Page 6 of 6