Subash Chandra Das Vs Mami Pati

Signature Not Verified

Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Jun-2024 15:56:42

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 285 OF 2024

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Subash Chandra Das and others

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Petitioners

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Mr. Tusar Kumar Mishra, Advocate

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-versus-

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Mami Pati and others

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Opp. Parties

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Mr. Swarup Kumar Patnaik, Advocate (For Opp. Party No.1)

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CORAM:

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JUSTICE K.R. MOHAPATRA

Order No.

ORDER 20.06.2024

This matter is taken up through hybrid mode.

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Order dated 11^th October, 2023 (Annexure-5) passed by learned 5^th Additional Senior Civil Judge, Cuttack in C.S(I) No.218 of 2016 is under challenge in this CMP, whereby an application filed by the Plaintiff under Order XXVI Rule 9 read with Section 151 CPC for appointment of a Survey knowing Commissioner to answer the questionnaire’s, has been allowed.

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Mr. Mishra, learned counsel for the Petitioners submits that the suit has been filed seeking easementary right over Schedule-C property of the plaint along with other reliefs. Trial of the suit has not yet commenced. At that stage an application under Order XXVI Rule 9 CPC was filed to answer the following:

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“1. To determine whether there has been as encroachment over a passage marked as A,B,C,D,A in the plaint.

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2. To get the fields measure and find out exact area encroached upon the passage to block the right of way.

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Jun-2024 15:56:42

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3. To demarcated the boundary of passage over which plaintiff claimed easementary right.

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4. To determine the area to close the opening by illegal and unauthorized construction of 2 pillars over the passage.

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5. To measure length and width of the passage marked A,B,C,D,A and to demarcate the existed shock pit over the passage.”

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It is his submission that the Plaintiff by way of filing the application makes an attempt to shift the burden of proof to the Survey knowing Commissioner to prove her case, which is not permissible in law. He further submits that the impugned order is cryptic and non-speaking one. Objection raised by the Petitioners was not discussed by learned trial Court while adjudicating the petition. Learned trial Court after discussing the case law, jumped to the conclusion that the case laws are squarely applicable to the case at hand without discussing the rival claims of the parties. It is his submission that the burden of proof is on the Plaintiff and she should always make an endeavour to prove her case. If any party to the suit is incapable of adducing evidence on certain points to be determined in the suit for just adjudication, then only a Survey knowing Commissioner may be appointed to elucidate the matter in dispute. Learned trial Court failed to consider the aforesaid position of law and passed the impugned order under Annexure5, which is not sustainable and is liable to be set aside.

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Mr. Patnaik, learned counsel for the Plaintiff-Opposite Party No.1 vehemently objects to the above. It is his submission that although no reason has been assigned, but the case laws discussed by learned trial Court are squarely applicable to the case of the Plaintiff-Opposite Party No.1. He further submits

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Jun-2024 15:56:42

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that there is no bar to consider an application under Order XXVI Rule 9 CPC at a pre-trial stage of the suit. He also relied upon the ratio in the case of Mahendranath Parida –v- Purnananda Parida and others, reported in AIR 1988 Ori 248 and submits that when the identity of the land is in dispute, a Survey knowing Commissioner should be appointed at a pre-trial stage, so that the parties can go to trial being prepared. In the instant case, the Defendants have completely denied the existence of road in question. Thus, there was no legal impediment on the part of learned trial Court to grant the prayer for appointment of a Survey knowing Commissioner at a pre-trial stage of the suit. He, however, submits that learned trial Court could have assigned reason for granting the prayer for appointment of a Survey knowing Commissioner. But, that itself does not entitle the Petitioner the relief claimed in the CMP. He, therefore, prays for dismissal of the CMP.

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Taking note of the submissions made by learned counsel for the parties and on perusal of the record, it is apparent that trial of the suit has not yet commenced. The Plaintiff claims easementary right over Schedule-C property. It is stated that the Defendants have completely denied existence of Schedule-C property and right over the Plaintiff over the same. Thus, the burden is on the Plaintiff to prove her case. As of now the Plaintiff has not made any attempt to prove her case. In the case of Santosh Kumar Parida –v- Narayan Chandra Dash & others, reported in 2020 (II) ILR - CUT- 629, it is held as under:

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“6. The provision is silent about the stage at which such a commission should be issued. The power conferred under the provision can be exercised at any stage during

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Jun-2024 15:56:42

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pendency of the suit. In other words, the Court in its discretion may issue a commission at any stage of the suit, when it thinks necessary to 6 do so for the purpose of elucidating any matter in dispute or for any other purposes prescribed in the Rule itself. There are divergent views with regard to the stage of a suit at which a Commission can be issued. There cannot be any straightjacket formula to prescribe any particular stage of the suit at which a Commission, if required, can be issued. It depends upon the facts and circumstances of each case. In the case of Ramakanta Nayak Vs. Bhanja Dalabehera , reported in (2015) Supp.II OLR 418, this Court held that issuance of a commission for local investigation is the discretion of the Court. While considering the prayer for issuance of a Commission, the Court must apply its mind to the facts and circumstances of the case and pass orders. Before issuance of a Commission, the Court must be satisfied that there is prima facie material in favour of the applicant for issuance of such a Commission. Again, in case of Ramakanta Nayak (supra), it is held that when the Legislature in its wisdom has not prescribed the stage of appointment of Survey knowing Commissioner, the power of the Court to appoint the Survey knowing Commissioner cannot be cabined, cribbed or confined. Thus, the power of the Court to issue commission under the provision cannot be abridged or curtailed by prescribing a particular stage of the suit for issuance of a Commission for a particular purpose.”

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In the aforesaid case, this Court while considering the stage of entertaining an application under Order XXVI Rule 9 CPC has clearly held that the statute does not provide any particular stage for consideration of an application under Order XXVI Rule 9 CPC. But the party seeking relief under the said provision should always make attempt to prove his/her case. In the event, they are incapable of adducing evidence or the evidence available on record is not sufficient, then the Court may consider appointment of a Survey knowing Commissioner to elucidate the matter in dispute between the parties. In the instant case, such an occasion has not yet arisen.

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Jun-2024 15:56:42

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It further appears that the impugned order under Annexure-5 is cryptic and non-speaking one, as learned trial Court has not discussed the rival claims of the parties to allow the application under Order XXVI Rule 9 CPC. In that view of the mater, this Court feels that the matter requires fresh consideration. Accordingly, the impugned order under Annexure-5 is set aside and the matter is remitted to learned trial Court for fresh consideration of application under Order XXVI Rule 9 CPC keeping in mind the observations and case laws referred to hereinabove.

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