The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Nov-2025 10:49:19 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.986 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Lilibala Sethi Satya Sethi …. -versus- Petitioner …. Opposite Party Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
Commission must establish a prima facie case to invoke the provision. He cannot use the Court to collect evidence on his behalf in the guise of invoking the power of the court under the provision, unless the occasion so arises. Thus, the party to the suit seeking issuance of a commission must, at the first instance, make an endeavor to lead evidence to prove his case on the issue involved. Only when the evidence or material on record is insufficient or needs clarification or the parties are C.M.P. No.986 of 2025 Page 4 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Nov-2025 10:49:19 unable to lead evidence on any particular matter in dispute or it becomes expedient to make a local investigation by a Commission to lead further evidence in the matter, to pass an effective decree, then the Court has the power to exercise its discretion under the provision and issue such a commission for any purpose mentioned in the provision itself.” 8. In the case at hand, the Defendant seeks appointment of civil court commissioner in a suit for eviction in order to ascertain not only location of the suit land, but other such properties allotted in favour of other brothers of the parties also in reference to the previous partition took place among them. Therefore, the purpose intended by Defendant to be solved by the Commissioner is that to get details of location of such properties allotted to each brother in course of the previous partition. It needs to be mentioned here that the entire joint family property has not been described in the suit and all such sons of Late Lochan Sethi have not been made parties to the suit. Therefore, it would be a herculean exercise on the part of the commissioner to ascertain the exact location of such properties fall to the share of each son of Late Lochan Sethi in terms of the previous partition which is practically impossible at this stage. When the suit is for specific purpose for eviction of the Defendant in respect of a particular piece of land as per the suit schedule, it is not necessary to ascertain the location C.M.P. No.986 of 2025 Page 5 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Nov-2025 10:49:19 of each such plots fell to the share of each such co-sharers to get the result in favour of the Defendant. When the previous partition is admitted, it is upto the parties to establish their claim by adducing evidence to that effect for which appointment of civil court commissioner is not necessary to visit the spot particularly when the prayer is for eviction in respect of the land recorded in the name of a particular party. 9. In the circumstances, the order of the learned trial court to refuse the prayer of the Defendant to depute the civil court commissioner for the purposes prayed by the Defendant is thus justified and the learned trial court has rightly rejected the payer of the Defendant in this regard. The impugned order is thus confirmed and the C.M.P. is dismissed. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.986 of 2025 Page 6 of 6
Arguments
: Mr. P. Mohanty, Advocate For Opposite Party : Mr. R. Das Mohapatra, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 20th November 2025 B.P. Routray, J. 1. Heard Mr. P. Mohanty, learned Advocate for the Petitioner and Mr. R. Das Mohapatra, learned Advocate for the Opposite Party. 2. Present C.M.P. is directed against order dated 07.05.2025 passed in C.S. No.23 of 2023 by learned Additional Civil Judge (Jr. Divn.), Ranpur wherein the prayer of the Defendant under Order 26 Rule 9, C.P.C. was rejected. C.M.P. No.986 of 2025 Page 1 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Nov-2025 10:49:19 3. Present Opposite Party, who is the Plaintiff, has filed the suit praying for eviction of the Defendant (present Petitioner) from suit premises. 4. According to the Plaintiff, the suit premises is his land falling to his share as per the previous partition held in the family. Admittedly, the suit land is a part of the property belonged to the common ancestor, namely, Late Lochan Sethi, who had five sons. Plaintiff is one of the sons and the husband of the Defendant is another son. Admittedly, there was a previous partition effected amicably between the sons of late Lochan Sethi during the life of late Lochan Sethi and the sons took over possession of their respective shares of property accordingly. Present suit property when claimed by the Plaintiff to have fallen under his share and accordingly the Hal RoR was corrected in his name, the Defendant disputes the same claiming that it fell into the share of her husband and accordingly she was in possession of the same running tuition center there. But according to the claim of Plaintiff, the Petitioner took the suit premises on rental basis from the Plaintiff to run tuition center and now denying to vacate the same. C.M.P. No.986 of 2025 Page 2 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Nov-2025 10:49:19 5. It is true that the Hal RoR with regard to suit premises, i.e. Plot No.60 measuring area Ac.0.06 decimals has been recorded in the name of the Plaintiff and the RoR is relied on by the Plaintiff in his support. The suit is presently at the stage of evidence continuing from the side of the Defendant where the Defendant has examined some of her witnesses. At this stage, the Defendant filed a petition under Order 26 Rule 9, C.P.C. with a prayer to ascertain the exact location of the suit property and other landed properties allotted in favour of other sons of Late Lochan Sethi with reference to their previous partition. 6. It is true that the previous partition between the sons of Late Lochan Sethi is not disputed. It is also admitted that present suit premises has been recorded in the hal RoR in the name of the Plaintiff. So by way of deputing civil court commissioner, the Defendant want to re-open the previous partition to the extent that in whose share which property fell. 7. The settled principles as per Order 26 Rule 9 C.P.C. are that the Court has the discretionary power to appoint civil court commissioner in order to elucidate the matter in dispute or for such other purpose, particularly to get such information peculiar in the facts of the case to C.M.P. No.986 of 2025 Page 3 of 6 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Nov-2025 10:49:19 be only available at the spot. In Santosh Kumar Parida vs. Narayan Chandra Dash and others, 2020 (II) ILR-CUT-629, this Court has observed as follows:- “5.1. Thus, it is apparent that in a suit, the Court may issue a commission to any person for the purpose of ‘elucidating any matter in dispute’ and for all other purposes mentioned in the provision itself. According to Oxford dictionary, the word ‘elucidate’ means ‘to throw light or to make clear, to explain, to remove obscurity from and render intelligible or to illustrate’. According to Cambridge dictionary, it means ‘to explain something or make something clear’. According to Chambers dictionary, it means ‘to make lucid or clear or to throw light upon, to illustrate, making clear, explanatory’. Thus, from the reading of the provision it is manifest that if a matter in dispute in a suit needs any clarification or further explanation, the Court may consider issuance of a commission for that purpose. The language employed in the provision makes it abundantly clear that the Court exercises its judicial discretion while making order for issuance of a commission. But, it must be kept in mind that all matters in dispute in a suit cannot be elucidated through issuance of a commission. Thus, the party seeking issuance of a