The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:00:15 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.1089 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Amiya Kumar Jena and another …. Petitioners -versus- Ranjan Kumar Jena and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. A.P. Bose, Advocate For Opposite Parties : Mr. S. Mishra, Advocate For Opposite Parties CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 22nd August 2025
Legal Reasoning
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 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. 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 C.M.P. No.1089 of 2025 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:00:15 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 straight jacket 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 v. 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 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 C.M.P. No.1089 of 2025 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:00:15 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 the prayer for 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.” 9. In the given facts of the present case where the suit is for permanent injunction simplicitor, it is left open for the Defendants to dispute the title of the Plaintiffs over the suit land and in case there is no cloud over the title of the Plaintiffs, the Court has to decide accordingly on the relief claimed by the Plaintiffs. Undoubtedly the parties have completed their evidences in the suit in respect of the issues settled for determination. The questionnaire posed by the Defendants in their petition, as stated above, is intended to get the number of houses over the suit land and possessors thereof which may not be very necessary for determination of the issues where the relief is for permanent injunction simplicitor. Admittedly, the court cannot be a weapon in the hand of the party to collect evidence for it and unless there is a dispute with regard to identification of the suit land or C.M.P. No.1089 of 2025 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:00:15 boundary disputes regarding possession or any such other dispute need to be verified by the civil court commissioner, the appointment of the commissioner by the court would hardly be digested. What is observed by learned trial court that in view of the principles of natural justice, local investigation by the civil court commissioner is required to correctly understand the point in issues, is completely inappreciable. This is found somehow unconceivable by this Court in absence of appropriate reasons. The trial court is unable to explain the proper reasons either for identification of the suit land or for some disputes required to be inspected locally in order to ascertain the nature of truth for appointing the civil court commissioner. Thus, the reason of the trial court being not found justified for appointment of the civil court commissioner, particularly in a suit for permanent injunction
Arguments
B.P. Routray, J. 1. Mr. S. Mishra, learned counsel appears for all the Opposite Parties by filing power in Court. The power is kept on record. 2. Heard Mr. A.P. Bose, learned Advocate for the Petitioners and Mr. S. Mishra, learned Advocate for the Opposite Parties. 3. Present C.M.P. is directed against the impugned order dated 02.07.2025 of learned Civil Judge (Jr. Divn.), Kendrapara passed in C.M.P. No.1089 of 2025 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:00:15 C.S. No.370 of 2022, wherein the prayer of the Defendants 1 to 9 for appointment of civil court commissioner under Order 26 Rule 9, C.P.C. has been allowed. 4. Present Petitioners are the Plaintiffs, who filed the suit praying for decree of permanent injunction against the Defendants. The parties have appeared and led their respective evidences in the suit. After closure of the evidences from both the sides and when the matter is posted for argument, at that stage the Defendants filed a petition under Order 26 Rule 9, C.P.C. with the following questionnaire. “1. How many houses standing over the suit land. 2. Who is staying in the houses standing over the suit land. 3. That, what is the length and breadth of the suit land.” 5. Mr. A.P. Bose, learned counsel for the Petitioners submits that when the parties have adduced their respective evidence which is not insufficient in the opinion of the court to decide the issues in dispute, there is no need of appointment of civil court commissioner for the purpose sought for by the Defendants. 6. Conversely, Mr. S. Mishra, learned counsel for the Opposite Parties (Defendants) urges that if according to the opinion of the C.M.P. No.1089 of 2025 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:00:15 learned trial court deputation of civil court commissioner is necessary for finding answers to such questions, which is court’s discretionary power under Order 26 Rule 9, C.P.C., the grievance of the Plaintiffs against the same is unfounded and thus this Court should not debar the trial court from exercising his discretionary power. 7. The principles as to the power of the trial court and scope under Order 26 Rule 9, C.P.C. directing for appointment of civil court commissioner is no more res integra. A bare perusal of the provision of Rule 9 speaks that the Court has the discretion to order local investigation. Such local investigation is not intended to collect evidence but to obtain evidence which by its peculiar nature can only be obtained on the spot. Cases like boundary disputes and disputes about the identity of lands are instances when a Court should order a local investigation under this rule. 8. This Court in the case of Santosh Kumar Parida vs. Narayan Chandra Dash and others, 2020 (II) ILR-CUT-629, 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. C.M.P. No.1089 of 2025 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2025 18:00:15 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 Commission must
Decision
simplicitor, the impugned order is set aside. 10. In the result, the C.M.P. is allowed and the impugned order dated 02.07.2025 passed by the learned Civil Judge (Jr. Divn.), Kendrapara in C.S. No.370 of 2022 under Annexure-1 is set aside. B.K. Barik/Secretary (B.P. Routray) Judge C.M.P. No.1089 of 2025 Page 7 of 7