Dismissed

Padi Behera v. Hrushi Behera

Orissa HC6 Mar 2019WP(C)/751/2010

Case brief

AI extract

What is this about?

Considered a Writ Petition challenging the rejection of an application seeking appointment of a Pleader Commissioner to ascertain the topography of suit land in a civil suit. Held that the trial court correctly rejected the application and no infirmity warrants interference.

What did the court decide?

The Writ Petition was dismissed. The Trial Court was directed to dispose of the suit within three months.

Padi Behera Vs Hrushi Behera — Property and Title | Orissa HC (2019)

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W.P.(C) No.751 of 2010

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06.03.2019

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Heard Mr. Mahadev Mishra, learned Senior Counsel for the petitioners and Mr. Ajit Kumar Tripathy, learned counsel for the opposite party nos.1 to 3.

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Khageswar Behera, predecessor in interest of the petitioner has filed a Title Suit No.93 of 2004 before the learned Civil Judge (Senior Division), Jajpur, for permanent injunction and confirmation of possession. Defendants have entered appearance and filed written statement denying the assertions made in the plaint. While matter stood thus, an application under Order 26 Rule 9 CPC was filed by the plaintiffs for appointment of a Pleader Commissioner to answer the following queries :

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How many houses and what type of trees are standing over the suit land ?

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Whether latrine and well are existing over the suit land ?

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Whether suit land is within one enclosure ?

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Commissioner is required to give a topography of the house, latrine, well, trees etc. over the suit land.

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The same was rejected by the trial court. Against the said order, the petitioners filed W.P.(C) No.16227 of 2009 before this Court. The petitioner withdrew the petition to file appropriate application before the court below. Thereafter an application was filed for

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uks

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appointment of Pleader Commissioner to answer the questions mentioned supra. Objection was raised by the defendants. The trial court by order dated 23.12.2009 rejected the petition holding inter alia that all the questions can be answered by way of adducing evidence.

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Mr. Mishra, learned Senior Advocate for the petitioners submits that Pleader Commissioner to be appointed to ascertain the topography of the house, latrine, well, trees standing over the suit land for collection of evidence.

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Per contra, Mr. Tripathy, learned counsel for the defendants submits that application was filed for appointment of a Pleader Commissioner. The Pleader Commissioner has no expertise to ascertain the topography of the suit land.

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The suit is for permanent injunction and recovery of possession. The Pleader Commissioner has no expertise to ascertain the topography of the suit schedule land. The Commissioner cannot be appointed by the Court to collect the evidence and to assist the parties. The petition is misconceived. Learned trial court has rightly rejected the same.

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In view of the foregoing discussion, this Court does not find any infirmity or illegality in the order of the trial court, warranting interference by this Court under Article 227 of the Constitution.

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The petition is dismissed.

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Since the suit is of the year 2004, learned

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trial court shall do well to dispose of the suit as expeditiously as possible, preferably within a period of three months from the date of production of certified copy of this order.

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……………………… Dr.A.K.Rath, J.

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BK B

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Padi Behera v. Hrushi Behera

Case brief

What is this about?

What did the court decide?

Padi Behera v. Hrushi Behera

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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