Order dated 31^st January, 2023 (Annexure-3) passed by learned Civil Judge (Senior Division), Nabarangpur in C.S. No.04 of 2022 is under challenge in this CMP, whereby an application filed by Defendant under Order XXVI Rule 9 and 10-A read with Section 151 of the C.P.C., has been rejected.

¶16

It is submitted by Mr. Mishra, learned counsel for the Petitioner that evidence from the side of the parties has already been closed and the suit is at the stage of argument. In order to elucidate the dispute that the alteration/demolition undertakn by the Plaintiff to the suit structure has affected the first and second floor of ‘B’ Schedule property, it was imperative to appoint a Civil Engineer to submit a report. Since the Civil Engineer is an expert with regard to the question sought to be answered, the Defendant filed an application under Order XXVI Rule 9 and 10-A read with Section 151 of the C.P.C. to depute a competent Civil Engineer to make a local investigation and submit a report,

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which will be beneficial to elucidate the matter in controversy. Learned trial Court without considering the same dismissed the

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petition holding that the evidence available is sufficient to adjudicate the matter in dispute effectively. He, therefore, prays for setting aside the impugned under Annexure-3 and to direct learned trial Court to depute a competent Civil Engineer to submit a report with regard to the controversy as stated in the petition.

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Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the parties have led evidence in support of their case in the suit. After closure of the evidence, the suit is at the stage of argument. Learned counsel for the Petitioner fairly concedes that the Petitioner has not examined any Civil Engineer in support of his case. There is also no material on record to show that there was any impediment on the part of the Defendant-Petitioner to examine a competent Civil Engineer in support of his case. It further appears that learned trial Court on scrutiny of the materials came to a categorical conclusion that the evidence available in the case record is sufficient to adjudicate the matter in dispute. Since it is the observation of learned trial Court that no further elucidation is required to the matter in controversy, it is not necessary to appoint a Civil Engineer as prayed for by the Petitioner. Hence, I am not inclined to interfere with the impugned order.

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Accordingly, the CMP being devoid of any merit stands dismissed.

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Urgent certified copy of this order be granted on proper application.

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bks

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Sudala Srinivas Rao v. Sudala Siva Prasad

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Sudala Srinivas Rao v. Sudala Siva Prasad

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