Disposed¶18

Binod Prasad@Binod Kumar Prasad and Anr. v. Mahendra Sharma and Anr.

Calcutta HC17 Nov 2025CO/124/2025

Case brief

AI extract

What is this about?

Local inspection; Order XXVI Rule 9 CPC; Advocate Commissioner appointment; encroachment; eviction suit; rejection of inspection application set aside; Civil Judge (Senior Division) Kalimpong; O.C. Suit No. 06 of 2021; Order No. 43 dated March 27, 2025; CO/124/2025; Debangsu Basak, J.; Circuit Bench Jalpaiguri; trial-stage evidence recording; opposite parties absent despite service.

What did the court decide?

Impugned Order No. 43 dated March 27, 2025 set aside; learned trial Judge requested to appoint an Advocate Commissioner for local inspection under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, as prayed for by the plaintiffs; CO/124/2025 disposed of accordingly. ¶18

Binod Prasad@Binod Kumar Prasad and Anr. Vs Mahendra Sharma and Anr. — Calcutta HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

¶18

Issue for consideration

Whether a local inspection under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 is required in the eviction suit to establish the nature and extent of the alleged encroachment, i.e., whether the trial Court's rejection of the plaintiffs' local-inspection application (Order No. 43 dated March 27, 2025) should be set aside and an Advocate Commissioner appointed.

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Court's answer

Given the nature of the suit for eviction and the issues framed therein, a plausible view is that a local investigation is required to elucidate on the issues in the suit; the nature and extent of the alleged encroachment can be found out by a local inspection in terms of Order XXVI Rule 9 of the Code of Civil Procedure, 1908.

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Ratio / Principle

The impugned order (Order No. 43 dated March 27, 2025) is set aside.

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Key takeaways

The learned trial Judge is requested to appoint an Advocate Commissioner to undertake the exercise under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, as prayed for by the plaintiffs in its petition thereunder.ratio¶17

Detailed headnote1 paragraphs

High Court at Calcutta (Circuit Bench at Jalpaiguri), Debangsu Basak, J., CO/124/2025, decided 17.11.2025. Petitioners, plaintiffs in a suit for eviction (O.C. Suit No. 06 of 2021, CIS 03 of 2021) before the Civil Judge (Senior Division), Kalimpong, assailed Order No. 43 dated March 27, 2025, whereby their application for local inspection had been rejected with liberty to reapply. Held that the nature of the suit and the issues framed therein permit a plausible view that a local investigation is required to elucidate on the issues, and that the nature and extent of the defendants' alleged encroachment on the plaintiffs' land can be found out by a local inspection in terms of Order XXVI Rule 9 of the Code of Civil Procedure, 1908. The impugned order was set aside and the learned trial Judge requested to appoint an Advocate Commissioner to undertake the exercise under Order XXVI Rule 9 as prayed for by the plaintiffs in its petition thereunder. CO/124/2025 disposed of accordingly; none appeared for the opposite parties despite service.

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Dd 19 17.11.2025

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IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI

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CO/124/2025 BINOD PRASAD@BINOD KUMAR PRASAD AND ANR

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MAHENDRA SHARMA AND ANR

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Mr. Anand Bhandari, Mr. Mayank Bhandari, Advocates … … For the Petitioners

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Petitioners assail Order No. 43 dated March 27 of 2025 passed in O.C. Suit No. 06 of 2021 (CIS 03 of 2021) pending before the Court of the learned Civil Judge (Senior Division) at Kalimpong.

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Learned advocate appearing for the petitioners submits that the petitioners as the plaintiffs filed a suit for eviction. He submits that the defendants encroached upon the land belonging to the petitioners, ostensibly on the basis of a title deed allegedly executed by a different person. He submits that initially application for local inspection filed on behalf of the petitioners was rejected by retaining the liberty to reapply at an appropriate stage.

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Learned advocate appearing for the petitioners submits that, the evidence of parties is being recorded at the trial. He submits that a local inspection is required in order to introduce the position of the land as obtaining presently, at the trial for the trial Court to evaluate the issues framed in the suit appropriately.

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Affidavit-of-service filed in Court be taken on record. None appears for the opposite parties despite service.

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There is a suit for eviction by the defendants pending. Plaintiffs claim right, title and interests in respect of the suit property. It is the allegation of the plaintiffs/petitioners that the defendants encroached upon a portion of the land belonging to the plaintiffs ostensibly on the basis of a title deed through which, no right flowed to the defendants, in respect of the land of the plaintiffs which the defendants encroached upon.

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In order to establish the area of encroachment, the plaintiffs/petitioners applied for local inspection. As noted above, initially such application was rejected with right of the plaintiffs being retained to reapply at an appropriate stage of the suit.

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The nature of the suit and the issues framed therein, permits a plausible view to be taken that a local investigation is required for the purpose of elucidating on the issues in the suit. As noted above, the suit is for eviction. Plaintiffs are claiming that the defendants encroached upon land belonging to the plaintiffs. Nature and extent of encroachment can be found out by a local inspection in terms of Order XXVI Rule 9 of the Code of Civil Procedure, 1908.

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In such circumstances, the impugned order is set aside. Learned trial Judge is requested to appoint an Advocate Commissioner for the purpose of undertaking an exercise under

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Order XXVI Rule 9 of the Code of Civil Procedure, 1908, as prayed for by the plaintiffs in its petition thereunder.

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CO/124/2025 is disposed of accordingly.

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(Debangsu Basak, J.)

Binod Prasad@Binod Kumar Prasad and Anr. v. Mahendra Sharma and Anr.

Case brief

What is this about?

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Binod Prasad@Binod Kumar Prasad and Anr. v. Mahendra Sharma and Anr.

Case brief

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What the court decided

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