Allowed

Krushna Ch.Kar and Ors. v. Purna Ch.Mishra

Orissa HC10 Aug 2023WP(C)/5329/2012

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, setting aside the trial court’s order appointing a survey knowing commissioner. The court held that parties must first attempt to identify disputed B-Schedule land through evidence before invoking judicial discretion under Order XXVI Rule 9 CPC.

What did the court decide?

Impugned order under Annexure-5 set aside; Plaintiff directed to adduce evidence; Interim order of 2012 vacated.

Krushna Ch.Kar and Ors. Vs Purna Ch.Mishra — Civil Procedure and Limitation | Orissa HC (2023)

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Aug-2023 13:11:25

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No. 5329 OF 2012

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Krshna Chandra Kar and others

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…. Petitioners

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Mr. Maheswar Mohanty, Advocate

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-versus-

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Purna Chandra Mishra

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…. Opp. Party None

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CORAM:

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JUSTICE K.R. MOHAPATRA

Order No.

ORDER 10.08.2023

This matter is taken up through hybrid mode.

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Order dated 9^th January, 2012 (Annexure-5) passed by learned Civil Judge (Junior Division), Soro in T.S. No.1618 of 2001 is under challenge in this writ petition, whereby an application filed by the Plaintiff-Opposite Party under Order XXVI Rule 9 CPC, has been allowed.

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Mr. Mohanty, learned counsel for the Petitioners submits that the suit has been filed by the Opposite Party for recovery of possession and for permanent injunction. After examination of one witness, an application under Order XXVI Rule 9 CPC was filed by the Plaintiff-Opposite Party for deputation of a Survey knowing Commissioner to identify the ‘B’ Schedule land. It is his submission that the evidence of the Plaintiff has not yet been closed. He has not made any endeavour to adduce evidence in support of his case. The controversy in the suit is with regard the ‘B’ Schedule land. When the Plaintiff-Opposite Party claims the ‘B’ Schedule land to be a part of Plot No.1202, the Defendants-Petitioners claim it to be a part of Plot No.1197.

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Aug-2023 13:11:25

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Thus, at the first instance, the parties are required to adduce evidence in support of their respective cases. If after adducing evidence by the parties, it falls short of for identification of the ‘B’ Schedule land, then the Court may exercise its discretion to depute a Survey knowing Commissioner for its identification. Without making any endeavour in that regard, the Plaintiff filed the aforesaid application, which was allowed by a non-speaking order. Hence, this writ petition has been filed.

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In support of his case, Mr. Mohanty, learned counsel for the Petitioners relied upon the order dated 1^st July, 2020 passed in CMP No.317 of 2020 ( Santosh Kumar Parida-v-Narayan Chandra Dash and others ), wherein it is held that the parties should make endeavour at the first instance to adduce evidence in their respective cases. When the evidence falls short of or ambiguous to elucidate the matter in dispute, learned trial Court may exercise its discretion for appointment of a Survey knowing Commissioner. Hence, he prays for setting aside the impugned order under Annexure-5.

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None appears for the Opposite Party although he is represented through his learned counsel. 6. Considering the submission made by Mr. Mohanty, learned counsel for the Petitioners, this Court finds that the Plaintiff-Opposite Party has only examined one witness in the suit. The evidence of the Plaintiff is not closed. Thus, there is opportunity for the Plaintiff-Opposite Party to adduce evidence in support of his case in respect of identification of ‘B’ Schedule land. Appointment of a Survey knowing Commissioner at this stage will amount of procuring evidence through Court. The

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Aug-2023 13:11:25

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discretion under Order XXVI Rule 9 CPC should be exercised sparingly and in cases where the evidence is insufficient or ambiguous or the parties are incapable of adducing evidence in support of their case, the Court may exercise the discretion under Order XXVI Rule 9 C.P.C. In the instant case, it does not fall within any of the aforesaid category. In that view of the matter, exercise of discretion under Order XXVI Rule 9 CPC by learned trial Court appears to be illegal.

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Accordingly, the impugned order under Annexure-5 is set aside. The Plaintiff is directed to adduce evidence in support of his case.

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The writ petition is allowed to the aforesaid extent.

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Since the suit is of the year, 2001, learned trial Court should also make an endeavour for early disposal of the suit. The parties are directed to cooperate with learned trial Court for early disposal of the suit.

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Interim order dated 27^th March, 2012 passed in M.C. No.4602 of 2012 stands vacated.

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

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(K.R. Mohapatra) Judge

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Krushna Ch.Kar and Ors. v. Purna Ch.Mishra

Case brief

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Krushna Ch.Kar and Ors. v. Purna Ch.Mishra

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