The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 859 of 2022 Bidyadhar Pradhan and another …. Petitioners Mr. Bikas Kumar Swain, Advocate on behalf of Mr. Arun Kumar Mishra, Advocate -versus- Laxmidhar Pradhan and another …. Opp. Parties Ms. Swetlana Dash, Advocate Order No. 8. CORAM: JUSTICE K.R. MOHAPATRA
Decision
ORDER 03.03.2023 1. This matter is taken up through Hybrid mode. 2. Order dated 1st August, 2022 (Annexure-2) passed by learned Civil Judge (Junior Division), Pipili in IA No.3 of 2022 (arising out of CS No.3 of 2022) is under challenge in this CMP, whereby an application filed by Defendants/Opposite Parties under Order XXXIX Rule 7 CPC has been allowed. 3. Mr. Swain, learned counsel being authorized by Mr. Mishra, learned counsel for the Petitioners submits that the suit has been filed by the Petitioners for permanent injunction. During pendency of the suit, Defendants/Opposite Parties proceeded with construction encroaching upon the land of the Petitioners. Thus, an application was filed under Order XXXIX Rules 1 and 2 CPC in IA No.3 of 2022. Defendants/Opposite Parties by filing objection to the said IA contended that since the time of their ancestors, there existed four feet wall in between Plot No.769 and Plot No.770. Opposite Parties are making constructions over their Plot No.770, which is well within their boundary. The Opposite Parties, without making Page 1 of 5 // 2 // any endeavour to establish their case, filed an application under Order XXXIX Rule 7 CPC for deputation of Advocate Commissioner to inspect the spot and submit the report with regard to topography of the Plots, i.e., Plot No.770 and 769. 4. Although no written objection was filed by the Plaintiffs/Petitioners, but they orally objected to the same at the time of hearing of the petition. It was specifically objected that the petition under Order XXXIX Rule 7 CPC is not maintainable. The Pleader Commissioner cannot say whether the Opposite Parties have raised construction of pucca rooms by encroaching upon the strip of suit land, as the same requires appreciation of evidence. The Opposite Parties by deputation of an Advocate Commissioner intended to procure evidence in their favour through the Court and to linger the proceeding. The Plaintiffs, therefore, pray for dismissal of the petition under Order XXXIX Rule 7 CPC. Learned trial Court, without considering the same in its proper perspective, directed deputation of an Advocate Commissioner to inspect the spot and submit his report with regard to “Whether there is stone plinth of a dilapidated wall and an old stone wall standing adjoining to the eastern side wall of the Pucca house of the op. parties over the eastern side boundary line of the plot No.770 or not? And “Whether the pillar holes dug by the op. parties are existing inside the said boundary wall of plot No.770 or after the boundary wall over the plot No.769 of the petitioners and their co-sharers?” The Advocate Commissioner is not competent to report such query. 4.1 Learned counsel for the Petitioners further placed reliance on the case of Kalandi Swain and others Vs. Braja Page 2 of 5 // 3 // Kishore Dass and others, reported in AIR 1980 Orissa 98 and Balaram Mahajan Vs. Praveen Kumar and others, reported in 2014 AIR CC 2467 (MP) and submits that the purpose of issuance of Pleader Commissioner under Order XXVI Rule 9 CPC is for collecting the facts which in due course may be used as an evidence. Defendants/Opposite Parties should not be allowed to collect evidence through Court by filing a petition under Order XXXIX Rule 7 CPC. He, therefore, submits that the petition under Order XXXIX Rule 7 CPC is not maintainable. As such, the impugned order under Annexure-2 is liable to be set aside. 5. Ms. Dash, learned counsel for the Defendants/Opposite Parties submits that in the written statement, Opposite Parties have taken a specific stand that the old demarcating wall between Plot No.769 and 770 is existing from the time of their ancestors and the construction is being made over the plot of the Defendants, which is well within the said demarcating wall. No direction has been made to the Advocate Commissioner to submit report with regard to the boundary of Plot No.769 and 770. The Advocate Commissioner is only required to report whether there is an old dilapidated boundary wall and whether construction is being made within the said boundary wall or not. 5.1 Ms. Dash, learned counsel for Defendants/Opposite Parties further placed reliance on a decision of this Court in the case of Subal Kumar Dey Vs. Purna Chandra Giri and others, reported in AIR 1989 Ori 214, wherein this Hon’ble Court in para-7 held as under:- “7. In the aforesaid background, the question relating to inspection of disputed land as provided under Order 39, Rule 7, C.P.C. is to be considered. Trial court is not correct Page 3 of 5 // 4 // in stating that acceptance of prayer of defendant No. 1 would amount to rendering him assistance to collect evidence. Report of a Commissioner appointed under Order 26, Rule 9, C.P.C. shall be evidence as provided under Order 26, Rule 10, C.P.C. Report of inspection shall not be evidence unless otherwise proved. Power under Order 39, Rule 7, C.P.C. is not frequently used. This is a power to be exercised by the Court when occasion demands and when inspection is necessary for proper appreciation and adjudication of the matter. ….” She, therefore, submits that since the topography of the area is required to be placed before the Court for proper adjudication of application under Order XXXIX Rules 1 and 2 CPC, learned trial Court has committed no error in allowing such petition. 6. Considering the rival contentions of the parties and on perusal of record, it appears that Opposite Parties have specifically stated both in their written statement as well as objection to the petition under Order XXXIX Rules 1 and 2 CPC that there exits four feet dilapidated boundary wall in between Plot Nos.769 and 770. Learned counsel for the Petitioners, however, submits that the boundary wall, even if exists, cannot be the boundary line of both the plots. The same is the subject matter of dispute in the suit itself. In the instant case, in order to ascertain the veracity of the case of the Defendants, learned trial Court thought it proper to depute an Advocate Commissioner to ascertain the existence of an old dilapidated boundary wall up to four feet height and whether construction is being made by the Opposite Parties within the said dilapidated wall or not. It is only the material to be considered by learned trial Court along with other materials available on record for adjudication of the petition under Order XXXIX Rules 1 and 2 CPC. Thus, report of the Advocate Page 4 of 5 // 5 // Commissioner will in no way be conclusive one with regard to facts in issue. Further, in Subal Kumar Dey (supra) it is specifically held that the report of the Advocate Commissioner cannot be treated as evidence in the suit, unless it is proved following due process of law. Since learned trail Court considering the rival contentions of the parties, has allowed the petition under Order XXXIX Rule 7 CPC for deputation of Advocate Commissioner to submit a report, I am not inclined to interfere with the same. 7. Hence, the CMP being devoid of any merit stands dismissed. 8. Interim order dated 8th September, 2022 passed in IA No.899 of 2022 stands vacated. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 5 of 5