C.M.P. No. 230 of 2016. Case: Dolagobinda Rath and Ors. Vs Loknath Mishra. Orissa High Court

Case Number:C.M.P. No. 230 of 2016
Party Name:Dolagobinda Rath and Ors. Vs Loknath Mishra
Counsel:For Appellant: H.N. Mohapatra, Advocate and For Respondents: Satyabrata Udgata, Advocate
Judges:Dr. Akshaya Kumar Rath, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order XXVI Rule 9
Judgement Date:January 27, 2017
Court:Orissa High Court
 
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Judgment:

Dr. Akshaya Kumar Rath, J.

  1. This petition challenges the order dated 28.01.2016 passed by the learned Civil Judge (Jr. Divn.), Puri in C.S. No. 13 of 2013. By the said order, learned trial court rejected the application of the plaintiffs under Order 26 Rule 9 C.P.C. for appointment of a survey knowing commissioner.

  2. The petitioners as plaintiffs instituted the suit for permanent and mandatory injunction impleading the opposite party as defendant. The case of the plaintiffs is that the suit schedule property was the ancestral property. The same was recorded in the name of their father in the consolidation record of right published in the year 1987. The old building and eastern side boundary wall situated over the suit plot No. 1738. The defendant is the eastern side neighbour having his house over plot No. 1739. He forcibly tried to construct the building over the eastern side boundary wall.

  3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement-cum-counter claim and seeking a decree for mandatory injunction directing the plaintiffs to remove projections in their eastern side wall.

  4. While the matter stood thus, the plaintiffs filed an application under Order 26 Rule 9 C.P.C. for deputation of a survey knowing commissioner for measurement of plot Nos. 1378 and 1379. The defendant filed objection. Learned trial court came to hold that the evidence in the suit has not yet begun. It would be proper to take evidence on the issue so as to bring a clear picture regarding the dispute between the parties and also regarding the suit property. If evidence on record is found insufficient to arrive at a just decision in the suit then the survey knowing commissioner shall be issued.

  5. Mr. Mohapatra, learned counsel for the petitioners submitted that the dispute pertains to the measurement of the suit land. Learned trial court committed a manifest illegality in rejecting the application under Order 26 Rule 9 C.P.C. holding that the evidence of the suit has not yet begun. The survey knowing commissioner can be appointed at any stage of the suit.

  6. Per contra, Mr. Satyabrata Udgata, learned counsel for the opposite party, submitted that learned trial court has granted liberty to the plaintiff to move the application after adducing evidence from both the sides. There is no infirmity in the order passed by the court below.

  7. In Bhabesh Kumar Das v. Mohan Das Agrawal, 2015 (II) CLR 603, this Court held...

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