Girija Rani Hota Vs Erangula Dipas Kumar Sarab — Orissa HC (2025) — LawSathi Research

Girija Rani Hota Vs Erangula Dipas Kumar Sarab — Orissa HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

CMP disposed of with liberty to the Petitioners to renew the prayer for deputation of a Survey knowing Commissioner after closure of evidence from both sides; any renewed prayer to be considered on its own merit, uninfluenced by the Annexure-1 observations.

Issue for consideration

Whether the High Court should interfere with the trial Court's order dated 25th July, 2024 (Annexure-1) rejecting the Plaintiff's application under Order XXVI Rule 9 C.P.C. for deputation of a 'Survey knowing' Commissioner in C.S. No. 34 of 2018.

Ratio / Principle

This Court disposed of the CMP without expressing any opinion on the merits of deputation of a Survey knowing Commissioner.

Key takeaways

If the Petitioners renew their prayer for deputation of the Survey knowing Commissioner after closure of the evidence from both the sides, the same shall be considered on its own merit without being influenced by any observation made under Annexure-1.ratio¶17

Detailed headnote1 paragraphs

CMP No.1092 of 2024, High Court of Orissa at Cuttack (K.R. Mohapatra, J.), order dated 10.01.2025. The CMP challenged Annexure-1, an order dated 25th July, 2024 of the learned Civil Judge (Senior Division), Bhanjanagar in C.S. No. 34 of 2018, rejecting an application under Order XXVI Rule 9 C.P.C. filed by the Plaintiff for deputation of a 'Survey knowing' Commissioner. The original Plaintiff/Petitioner, Girija Rani Hota, having died, the Petitioners were represented by legal representatives; Erangula Dipas Kumar Sarab was the Opposite Party. Counsel for the Petitioners, Mr. Subhendu Kar, argued that the nature of the relief sought in the plaint required deputation of a Survey knowing Commissioner before commencement of trial so that the parties could lead evidence aware of the Commissioner's report, and that the case law relied upon by the trial Court had already been overruled by a Division Bench of this Court; he further indicated that the interest of justice would be served by renewing the prayer, if still required, after closure of evidence. Without expressing any opinion on the merits of deputation of a Survey knowing Commissioner, this Court disposed of the CMP with the observation that a renewed prayer after closure of evidence from both sides shall be considered on its own merit, uninfluenced by any observation made under Annexure-1.

Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 10-Jan-2025 19:39:18

IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1092 of 2024 Girija Rani Hota (since dead) …. Petitioners represented by LRs.

Mr. Subhendu Kar, Advocate

-versus-

Erangula Dipas Kumar Sarab …. Opp. Party

CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

10.01.2025

This matter is taken up through hybrid mode.

Order dated 25^th July, 2024 (Annexure-1) passed by learned Civil Judge (Senior Division) Bhanjanagar, in C.S. No. 34 of 2018 is under challenge in this CMP, whereby an application under Order XXVI Rule 9 C.P.C. filed by the Plaintiff (now dead andsubstituted by LRs.), has been rejected.

Mr. Kar, learned counsel for the Petitioners submits that in view of the nature of relief sought for in the plaint, it requires deputation of a Survey knowing Commissioner before commencement of the trial so that parties may lead evidence being aware of the Commissioner’s report. He further submits that the case law relied upon by learned trial Court has already been overruled by a Division Bench of this Court.

3.1 He, however, submits that interest of justice will be best served, if the Petitioners renew their prayer after closure of evidence, if deputation of Survey knowing Commissioner would be further required, keeping in mind the nature of relief claimed and the subject matter of dispute involved.

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Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CU TTACK Date: 10-Jan-2025 19:39:18

In view of such submission, this Court, without expressing any opinion on the merits of deputation of Survey knowing Commissioner, disposes of the CMP with an observation that if the Petitioners renew their prayer for deputation of the Survey knowing Commissioner after closure of the evidence from both the sides, the same shall be considered on its own merit without being influenced by any observation made under Annexure-1.

(K.R. Mohapatra)

Judge

Jina

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