Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK CMP No.473 of 2016 An application under Article 227 of the Constitution of India. *** Dhamali Patel … Petitioner. -VERSUS- Plant Manager, LPG Bottling Plant, Jharsuguda & Another … Opposite Parties. Counsel appeared for the parties: For the Petitioner For the Opposite Parties : None (for Opp. Party No.1) : Mr. Biraja Prasanna Das, Advocate Mr. S.S. Tripathy, Advocate Appearing on behalf of Mr. S. Rath, Adv. (For the Opp. Party No.2) P R E S E N T:
Legal Reasoning
HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA Date of Hearing : 17.10.2025 :: Date of Judgment : 31.10.2025 CMP No.473 of 2016 Page 1 of 9 ANANDA CHANDRA BEHERA, J.— J UDGMENT 1. This Civil Misc. Petition under Article 227 of the Constitution of India has been filed by the petitioner (plaintiff in the suit vide C.S. No.48 of 2012) against the Opp. Parties (defendants in the suit vide C.S. No.48 of 2012) praying for setting aside the impugned order dated 10.03.2016 passed in C.S. No.48 of 2012 by the learned Civil Judge (Jr. Division), Jharsuguda. 2. The factual backgrounds of this CMP under Article 227 of the Constitution of India, 1950, which prompted the petitioner for filing of the same is that, the petitioner being the plaintiff filed the suit vide C.S. No.48 of 2012 against the Opp. Parties arraying them (Opp. Parties) as defendants praying for declaration of his Right of easement of way/passage/path over the suit land stating in his plaint that, the suit passage is the only way/passage/path for coming to the main road i.e. to the Sundergarh-Jharsuguda road from his house. In the said suit, he (plaintiff) filed a petition on dated 02.02.2016 under Order 26 Rule 9 of the CPC, 1908 praying for deputation of a CMP No.473 of 2016 Page 2 of 9 survey knowing Civil Court Amin Commissioner in order to visit the suit land and to submit a report in respect of the nature and existing physical features of the suit land, to which, the defendant No.2 objected through written objection on the ground that, the nature and physical features of the suit land can be ascertained very well from the village map i.e. the survey map maintained and updated in the office of Tahasildar, Jharsuguda as well as in the office of the Revenue Inspector of the local Revenue Circle, for which, deputation of a survey knowing Civil Court Commissioner under Order 26, Rule 9 of the CPC is not required under law. That too, before starting of evidence in the suit vide C.S. No.48 of 2012, the question of deputation of any survey knowing Civil Court Amin Commissioner for spot verification in respect of the nature and physical features of the suit does not arise. Therefore, the petition dated 02.02.2016 under Order 26, Rule 9 of the CPC, 1908 of the plaintiff (petitioner) is liable to be rejected. After hearing from both the sides, the learned Civil Judge (Jr. Division), Jharsuguda rejected to the said petition dated CMP No.473 of 2016 Page 3 of 9 02.02.2016 under Order 26, Rule 9 of the CPC of the plaintiff (petitioner) on dated 10.03.2016 assigning the reasons that, “In the present suit, except pleadings, no other material is available or supplied by the plaintiff by way of evidence to wipe out the matter in dispute for proper adjudication of the suit, i.e. whether the commissioner is required to be issued for local investigation or not. For which, I do not find any reasonable ground to allow the petition filed by the petitioner-plaintiff under Order 26 Rule 9 of the CPC. Hence, the petition dated 02.02.2016 under Order 26, Rule 9 of the CPC, 1908 filed by the plaintiff stands rejected.” 3. On being dissatisfied with the above impugned order of rejection to the petition dated 02.02.2016 under Order 26 Rule 9 of the CPC of the plaintiff on dated 10.03.2016 passed by the learned Civil Judge (Jr. Division), Jharsuguda in C.S. No.48 of 2012, the plaintiff challenged the same by filing this CMP under Article 227 of the Constitution of India, 1950 praying for setting aside the same taking several grounds in his petition. 4. I have already heard from the learned counsel for the petitioner (plaintiff) and the learned counsel for the Opp. Party CMP No.473 of 2016 Page 4 of 9 No.2 (defendant No.2), as none appeared from the side of the Opp. Party No.1 (defendant No.1) for participating in the hearing of this CMP. 5. The petition dated 02.02.2016 under Order 26, Rule 9 of the CPC, 1908 of the plaintiff (petitioner) has been rejected by the learned Trial Court assigning the reasons i.e. non- availability of other materials than the pleadings to wipe out the matters in dispute between the parties. 6. The petition under Order 26 Rule 9 of the CPC, 1908 was filed by the petitioner (plaintiff) praying for deputation of a Survey Knowing Amin Commissioner to investigate the suit land and to submit a report relating to the nature and existing physical features of the suit land, as the suit is for declaration of his right of easement of way/passage/path over the suit land on the ground that, the suit land is the only way/passage/path from his house to reach Sundargarh- Jharsuguda main road, to which, the learned Trial Court rejected assigning the above reason. 7. When the suit of the petitioner (plaintiff) is for declaration of his right of easement of way/passage/path on CMP No.473 of 2016 Page 5 of 9 the suit land and when he (plaintiff) filed petition on dated 02.02.2016 praying for deputation of a Survey Knowing Amin Commissioner to investigate the spot and to submit a report about the existing nature and physical features of the suit land, then, at this juncture, the learned Trial Court should not have rejected to the said petition dated 02.02.2016 under Order 26, Rule 9 of the CPC, 1908 through the impugned order dated 10.03.2016. Because, there is no bar or prohibition under law for deputation of a Survey Knowing Amin Commissioner in a suit before starting of the evidence and in this nature of suit, a report of the Survey Knowing Amin Commissioner shall never cause any prejudice to any of the parties to the suit, rather the said report of the Commissioner can assist the Court for just and proper decision of the suit. The conclusion drawn above, finds support from the ratio of the following decisions: I. II. In a case between Mundladinne Gopal Reddy Vs. P. Ramachandra Reddy reported in 2016(4) Civil Court Cases 599 (Hyderabad) that, Commissioner under Order 26 Rule 9 of the CPC, 1908 can be appointed before issues are framed or evidence is led. In a case between Korada Murali Vs. Srinivas Sahu in Law Mirror.Com File & Another reported CMP No.473 of 2016 Page 6 of 9 III. IV. that, Number 72913 that, a Commissioner under Order 26, Rule 9 of the CPC can be appointed for a limited purpose of noting down physical features of the plaint schedule property, which will cause no prejudice to the parties. In a case between Ram Ujagar & Another Vs. Smt. Kailasha & Others reported in 2011 (3) Civ.C.C. 28 the object of appointment of (Allh.) Commissioner under Order 26 Rule 9 of the CPC is not to collect evidence, but to obtain evidence with regard to peculiar nature, which can only be had at the spot. In a case between Smt. Asha Devi & Others Vs. Bhollu Ram & Another reported in 2012 (2) Civil Court Cases 361 (P&H) that, the object of the appointment of a commissioner under Order 26, Rule 9 of the CPC is to obtain evidence from spot itself, which helps the Court to properly and effectively evaluate evidence on record. Report is a piece of evidence and its weight has to be seen by Court along with other evidence on record. 8. When, for the reasons assigned above, it is held that, the learned Civil Judge (Jr. Division), Jharsuguda should not have rejected to the petition dated 02.02.2016 under Order 26, Rule 9 of the CPC of the plaintiff for deputation of a Survey Knowing Amin Commissioner, but should have allowed the same, as the report of the Survey Knowing Amin Commissioner in the nature of the suit vide C.S. No.48 of 2012 filed by the plaintiff shall not cause prejudice to any of the parties to the suit, rather, the same can assist the Court for just and proper decision of the suit, then, at this juncture, by applying the principles of law enunciated in the ratio of the CMP No.473 of 2016 Page 7 of 9 above decisions, I find no justification to disallow this Civil Misc. Petition filed by the plaintiff (petitioner). For which, this CMP filed by the petitioner is to be allowed and the impugned order dated 10.03.2016 passed in C.S. No.48 of 2012 by the learned Civil Judge (Jr. Division), Jharsuguda is to be quashed (set aside). 9. As such, there is merit in the CMP filed by the petitioner. The same must succeed. 10. In result, this CMP filed by the petitioner (plaintiff) is allowed on contest. 11. The impugned order dated 10.03.2016 passed in C.S. No.48 of 2012 by the learned Civil Judge (Jr. Division), Jharsuguda is quashed (set aside). The petition dated 02.02.2016 under Order 26, Rule 9 of the CPC filed by the petitioner (plaintiff) in the suit vide C.S. No.48 of 2012 is allowed. 12. The learned Civil Judge (Jr. Division), Jharsuguda is directed to depute a Survey Knowing Amin Commissioner under Order 26 Rule 9 of the CPC through issuance of a proper Writ as per law to the Commissioner in the suit vide CMP No.473 of 2016 Page 8 of 9 C.S. No.48 of 2012 and shall proceed with the suit vide C.S. No.48 of 2012 for its final disposal as per law as expeditiously as possible according to the guidelines formulated by the Apex Court for early and speedy disposal of the suits. 13. The parties to this CMP are directed to appear before the learned Civil Judge (Jr. Division), Jharsuguda in C.S. No.48 of 2012 on dated 10.11.2025 and to file the certified copy of this Judgment for the purpose of receiving the directions of the learned Civil Judge (Jr. Division), Jharsuguda as to further proceedings of the said suit vide C.S. No.48 of 2012 on the basis of the directions made in this Judgment. 14. As such, this CMP filed by the petitioner (plaintiff) is
Decision
disposed of finally. (ANANDA CHANDRA BEHERA) JUDGE High Court of Orissa, Cuttack The 31.10. 2025// Rati Ranjan Nayak Sr. Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India. Date: 31-Oct-2025 19:24:13 CMP No.473 of 2016 Page 9 of 9