Disposed¶22

Shahanawaz Ahmed v. Nazimun Nesha

Orissa HC21 Jan 2026CMP/144/2026

Case brief

AI extract

What is this about?

Orissa High Court, Cuttack; CMP No.144 of 2026; order dated 21.01.2026; Justice Aditya Kumar Mohapatra; Article 227 Constitution of India; Order 26 Rule 9 CPC; Survey Knowing Commissioner; relay map; suit scheduled land; C.S. No.548 of 2002; Balasore; impugned order dated 08.12.2025 rejecting plaintiff's commissioner application upheld; no illegality; CMP disposed of; liberty to file fresh Order 26 Rule 9 application after closure of evidence from both sides.

What did the court decide?

Liberty granted to the Plaintiff-Petitioner to move another application under Order 26 Rule 9 after closure of evidence from both sides, to be considered by the learned trial court in accordance with law; no interference with the impugned order dated 08.12.2025. ¶22

Shahanawaz Ahmed Vs Nazimun Nesha — Writ and Judicial Review | Orissa HC (2026)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the learned trial court's rejection of the plaintiff's application under Order 26 Rule 9 CPC (for deputation of a Survey Knowing Commissioner to verify the nature of the suit scheduled land and prepare a relay map) constituted an illegality warranting interference by this Court in exercise of its inherent power under Article 227 of the Constitution of India.

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Court's answer

The learned trial court has not committed any illegality in rejecting the plaintiff's Order 26 Rule 9 application which would call for interference by this Court in exercise of its inherent power under Article 227 of the Constitution of India.

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Ratio / Principle

While disposing of the CMP, the Court granted liberty to the Plaintiff-Petitioner to move another application under Order 26 Rule 9 after closure of evidence from both sides, which shall be considered by the learned trial court in accordance with law.

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Detailed headnote1 paragraphs

CMP No.144 of 2026, High Court of Orissa at Cuttack (order dated 21.01.2026, A.K. Mohapatra, J.). Shahanawaz Ahmed, plaintiff in C.S. No.548 of 2002 (1st Addl. Civil Judge, Senior Division, Balasore), filed this application under Article 227 of the Constitution challenging the trial court's order dated 08.12.2025 rejecting his application under Order 26 Rule 9 CPC, made while evidence from the plaintiff's side was being recorded, praying for deputation of a Survey Knowing Commissioner to verify the nature of the suit scheduled land and to prepare a relay map to answer the schedule questionnaires. The trial court had rejected the application on the ground that it was intended to collect evidence in favour of the plaintiff, which is prohibited in law. On close scrutiny of the impugned order, the High Court found that the learned trial court had not committed any illegality calling for interference in exercise of its inherent power under Article 227, and disposed of the CMP, granting liberty to the Plaintiff-Petitioner to move another application under Order 26 Rule 9 after closure of evidence from both sides, to be considered by the learned trial court in accordance with law.

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.144 of 2026

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Shahanawaz Ahmed

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..... Petitioner

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Represented by Adv. - Jagajiban Pradhan

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-versus-

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Nazimun Nesha & Ors.

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..... Opposite Parties

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Represented by Adv. -

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CORAM:

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THE HON’BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA

ORDER

Order No.

21.01.2026

This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

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Heard learned counsel for the Petitioner. Perused the CMP application as well as the prayer made therein.

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By filing the present application under Article 227 of the Constitution of India, the plaintiff in the suit has approached this Court challenging order dated 08.12.2025 passed by the learned 1^st Addl. Civil Judge, Senior Division, Balasore in C.S. No.548 of 2002, whereby the application of the plaintiff-Petitioner under order 26 Rule 9 of the CPC has been rejected.

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Learned counsel for the Plaintiff-Petitioner at the outset contended that during the trial while the evidence from the side of the Plaintiff was being recorded and application was filed at the instance of the Plaintiff under Order 26 Rule 9 with a prayer to depute a Survey Knowing Commissioner for verifying the nature of the suit

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Page 1 of 2.

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scheduled land and to prepare a relay map to answer the schedule questionnaires. Such application was taken up in presence of both sides vide impugned order dated 08.12.2025 of the learned 1^st Civil Judge, Senior Division, Balasore, such application of the plaintiff has been rejected. Being aggrieved by such order dated 08.12.2025, the Petitioner has approached this Court by filing the present application.

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Perused the impugned order dated 08.12.2025, and consider the submission made by the learned counsel for the Petitioner. On perusal of the order dated 08.12.2025, this Court observes that the application under Order 26 Rule 9 was filed at the instance of the Plaintiff and at the time of recording of evidence from the side of the plaintiff. Learned trial court has rejected the application of the Plaintiff on the ground that the same is intended to collect evidence in favour of the plaintiff which is prohibited in law. On a close scrutiny of the impugned order, this Court is of the view that the learned trial court has not committed any illegality which would call for interference by this Court in exercise its inherent power under Article 227 of the Constitution of India. Accordingly, while disposing of the present CMP application, this Court grants liberty to the Plaintiff-Petitioner to move another application under Order 26 Rule 9 after closure of evidence from both sides which shall be considered by the learned trial court in accordance with law.

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