Satyabhama Giri Vs Bhagirathi Mahanta

No notices are issued to the opposite party Nos. 1 to 6 as the matter is disposed of at the stage of admission. Notice vis-à-vis opposite party No.7 is dispensed with.

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Instant petition is filed by the petitioner challenging the impugned order dated 23^rd March, 2024 passed in RFA No. 58 of 2022 by learned Additional District Judge, Champua, whereby, an application under Order 26 Rule 9 CPC pressed into service by her was rejected.

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The petitioner is defendant No.1 in the suit and challenges the impugned order in appeal since the Civil Court Commissioner was not appointed for demarcation in terms of Order 26 Rule 9 CPC. In fact, the suit at the instance of opposite party Nos. 1 to 6 in C.S. No. 06 of 2019 was decreed, as against which, RFA No. 58 of 2022 was filed and therein, such a request was made for demarcation. The further plea is that though the learned court

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below was of the view that a demarcation is necessary when there is a dispute as to encroachment but declined to appoint a Commissioner under Order 26 Rule 9 CPC on the premise that the same was not demanded before the learned court below and any such attempt would be like receiving additional evidence in appeal.

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The submission of Mr. Bose, learned counsel is that any Court for that matter has the jurisdiction to depute a Civil Court Commissioner, if a case is made out for the same even in absence of an application received by any of the parties to the lis.

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Admittedly, in the case at hand, the petitioner had not applied for measurement and demarcation of the suit schedule property before the court of the 1^st instance and upon disposal of the suit in C.S. No. 06 of 2019 and filing of the appeal, such a request was made but as earlier stated, it was not entertained. An application under Order 26 Rule 9 CPC was moved by the petitioner for demarcation of a passage by a Survey knowing Commissioner as made to reveal from Annexure-4 and the same did not receive any objection from opposite party Nos. 1 to 6 but still learned court below disallowed the same on the ground stated herein before. As it appears, the dispute revolves around a passage and its proper identification and hence, the request was received from the side of the petitioner for appointment and deputation of a Survey knowing Commissioner after the appeal was filed. The Court is of the view that even if, no such request was ever received from the petitioner during the pendency of the suit, since the application under Order 26 Rule 9 CPC was filed in RFA No. 58 of 2022, in absence of any bar or interdiction and when there has been a satisfaction of learned court below to the effect that for a demarcation measurement could be necessary, taking into account

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the nature of dispute inter se parties, the conclusion of the Court is that such a request should have been examined on merit. In other words, learned court below can be said to have committed error by not considering the application under Order 26 Rule 9 CPC at Annexure-4, even though, it was moved after disposal of the suit, so therefore, the impugned order decision by order dated 23^rd March, 2024 as at Annexure-1 is liable to be interfered with the matter to be remitted back for a fresh decision thereon according to law.

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Hence, it is ordered.

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In the result, the CMP stands allowed. As a necessary corollary, the impugned order dated 23^rd March, 2024 in RFA No. 58 of 2022 by learned Additional District Judge, Champua is hereby set aside with the matter remanded back for a fresh decision on the application i.e. Annexure-4 followed by an order as per and in accordance with law. In the circumstances, however, there is no order as to costs.

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9. Urgent certified copy of this order be issued as per rules.

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kabita

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(R.K. Pattanaik) Judge

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Signature Not Verified

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Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC, Cuttack Date: 08-May-2025 11:58:18

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Satyabhama Giri v. Bhagirathi Mahanta

Case brief

What is this about?

What did the court decide?

Satyabhama Giri v. Bhagirathi Mahanta

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

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