measure the land by a private Amin and submit the report, which could have been considered along with other materials available in the suit. Without resorting to the same, Defendant No.1 files an application under Order XXVI Rule 9 CPC to depute a Survey knowing Commissioner. This Court in the case of Santosh Kumar Parida –v Narayan Chandra Dash & others , reported in 2020 (II) ILR CUT 629, held to the effect that the party before resorting to Order XXVI Rule 9 C.P.C. must make an endeavour at the first instance to lead evidence in support of his case and only when he is incapable to lead any evidence or the Court feels that a Survey knowing Commissioner should be appointed in the facts and circumstances of the case to elucidate the matter in dispute, then it may consider the appointment of a Survey knowing Commissioner. Of course, there can be no dispute with regard to the ratio decided by this Court in the case laws cited by learned counsel for the Petitioner, but the same will apply depending upon fact and circumstances of each case. 7. In that view of the matter, when the parties seeking deputation of Survey knowing Commissioner is incapable of entering upon the land and measure, it can pray for deputation of such Commissioner. In the instant case, land in question is a road, which is open to all. There is no material on record to show that the Petitioner has any difficulty in entering upon the land to measure it. In absence of any material to that effect, petition for deputation of Survey knowing Commission should not be entertained, which would amount to procuring evidence by the Court on behalf of a party. Thus, I find no infirmity in the impugned order.
