Civil Suit No. 838/512 of 2018 · The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Aug-2024 12:25:11 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). NO.1393 OF 2022 Kartika Mohapatra …. Mr. Biswajit Mohapatra, Advocate -versus- Niyati Mohapatra @ Dash and others …. Opp. Parties Mr. Subhashis Mishra, Advocate (For Opp. Party Nos.3 & 4) Petitioner CORAM: JUSTICE K.R. MOHAPATRA ORDER 02.08.2024 Order No. 06. 1. This matter is taken up through hybrid mode. 2. Order dated 25th November, 2022 (Annexure-4) passed in Civil Suit No.838/512 of 2018-I by learned Senior Civil Judge, Balasore is under challenge in this CMP, whereby an application
Legal Reasoning
filed by the Defendants-Opposite Party Nos.3 and 4 under Order XXVI Rule 9 CPC for appointment of Survey Knowing Commissioner to answer certain questionnaires, has been allowed.
Legal Reasoning
3. Mr. Mohapatra, learned counsel for the Petitioner submits that the suit has been filed for partition. During pendency of the suit, leaned trial Court entertaining the application in IA No.45/98 of 2019 under Order XXXIX Rules 1 and 2 CPC directed the parties to maintain status-quo over the suit property till disposal of the suit. But, the Defendant No.1 was allowed to make construction of a building as per the work order under Pradhan Mantri Awas Yojana (Biju Pucca Ghara) over 269 sq.ft. to the South-East of Plot No.971 to an extent of Ac.0.04 dec. Alleging that the Defendant No.1 made construction over 1000 sq.ft. of the land violating the interim order of status-quo, the Defendant Nos.3 and 4 filed an application under Order XXVI Rule 9 CPC Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Aug-2024 12:25:11 for appointment of a Survey Knowing Commissioner to answer the following questionnaires: “1. Are any new construction going on over plot no.971? 2. What is the length, breadth and height of the new construction over plot no.971 of mouza-Parikul? 3. What is the length, breadth and height of the old construction over plot No.971 of mouza-Parikul as well as its present position?” 4. Learned trial Court, without considering the principles for entertaining an application under Order XXVI Rule 9 CPC, allowed the petition. Hence, this CMP has been filed. 5. It is his contention that no construction beyond 269 sq.ft. was made by the Defendant No.1-Petitioner. It is also submitted that no application for violation of the order of status-quo has yet been filed. Thus, the petition under Order XXVI Rule 9 CPC should not have been allowed to procure evidence from the side of Defendant No.3 and 4. 6. Mr. Mishra, learned counsel for the contesting Opposite Party Nos.3 and 4 submits that in violation of the order of status- quo, the Defendant No.1-Petitioner made construction over 1000 sq.ft. of Plot No.971. If he is allowed to make construction, it will disturb the equilibrium and create difficulty in allotment of share in the final decree proceeding. It is his submission that the Court at any stage of the suit may in its discretion appoint a Survey Knowing Commissioner to reveal the truth. He also relied upon the case of Pitambar Nath vrs. Gourang Ch. Pati, reported in 2013 (I) OLR 653, wherein entertaining a similar nature of case, this Court upheld the order of appointment of a Survey Knowing Commissioner. It is his submission that pursuant to the order Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Aug-2024 12:25:11 dated 25th November, 2022, Commissioner’s fee has already been deposited. The report to be submitted by the Survey Knowing Commissioner will not prejudice any parties. Rather, it will assist the Court to arrive at a just conclusion, more particularly, at the time of distribution of the shares. Hence, no illegality has been committed by learned trial Court in allowing the petition under Order XXVI Rule 9 CPC. 7. Upon hearing, learned counsel for the parties and on perusal of the record, it appears that trial of the suit has not yet commenced. During pendency of the suit, IA No.45/98 of 2019 was filed under Order XXXIX Rules 1 and 2 CPC wherein vide order dated 21st June, 2022, learned trial Court directed the parties to maintain status-quo till disposal of the suit, but allowed the Defendant No.1-Petitioner to construct the building over 269 sq.ft. to the South-East side over Plot No.971 to an extent of Ac.0.04 dec. as he was granted the work order under Pradhan Mantri Awas Yojana. It is alleged that in violation of the said interim order, Defendant No.1-Petitioner is making construction over 1000 sq.ft. Admittedly, no petition under Order XXXIX Rule 2-A CPC has been filed alleging violation of the interim order. Parties have not yet been led evidence in support of their respective cases. On mere allegation made in the petition under Order XXVI Rule 9 CPC, learned trial Court proceeded to appoint Survey Knowing Commissioner, which is not the object and intent of the provision. The discretion conferred under Order XXVI Rule 9 CPC may be exercised at any stage of the suit to elucidate a matter in dispute in the suit. But, the parties should make an endeavour to establish their case by adducing evidence in the matter. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Aug-2024 12:25:11 8. If they are incapable of adducing evidence or evidence in that regard is insufficient or ambiguous to come to come to a definite finding, then the Court may in its discretion entertain an application under Order XXVI Rule 9 CPC to elucidate any matter in dispute in the suit. The discretion conferred on the Court should not be exercised to procure evidence on behalf of a party by merely asking for it. 9. In the instant case, no endeavour has yet been made by the Defendant Nos.3 and 4 to establish the allegation made in the petition under Order XXVI Rule 9 CPC or to adduce material in support of the same. Thus, learned trial Court has committed an error in entertaining the application under Order XXVI Rule 9 CPC in the facts and circumstances of the case. The case of Pitambar Nath (supra) is of no assistance to the case of the Petitioner, as the applicant therein had filed an application under Order XXXIX Rule 2-A CPC. 10.
Decision
In view of the above, this Court is of the considered opinion that the impugned order under Annexure-4 is not sustainable and is accordingly set aside. 11. Dismissal of this application shall not preclude the Petitioner to move application of similar nature, if occasions so arises, and in that event, the same shall be considered on its own merit giving opportunity of hearing to the parties concerned. 12. This CMP is accordingly disposed of. 13. Interim order dated 24th January, 2023 passed in IA No.1439 of 2022 shall stands vacated. Issue urgent certified copy of this order on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4