Friday, 5 May 2017

Whether court should appoint commissioner at initial stage of proceeding?

In Mahendranath Parida (supra), this
Court held that when the controversy is as to
identification, location or measurement of the 
land or premise or object, local investigation
should be done at an early stage so that the
parties can be aware of the report of the
Commissioner and can go to trial prepared.
In Ramakant Naik and others vs. Bhanja
Dalabehera, 2015 AIR CC 1724 (ORI), this
Court held that issuance of a Commission for
local investigation is the discretion of the
Court. While considering the prayer for
appointment of Commission, the Court must
apply its mind to the facts and circumstances
of the case and pass order. No straight jacket
formula can be laid down. Before issuance of
Commission, the Court must be satisfied that
there is prima facie case in favour of the
applicant.
On a reading of Order 26 Rule 9 C.P.C.,
it is manifest that the stage of appointment of
Survey Knowing Commissioner has not been
prescribed. 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 can not be cabined, cribbed or
confined.”
9. In view of the authoritative pronouncement of this Court in
the case of Bhabesh Kumar Das (supra), the order dated 2.9.2016
passed by the learned Addl. Civil Judge (Junior Division), Narasinghpur
in I.A No.06 of 2016 arsing out of C.S. No.20 of 2016 is quashed. 
HIGH COURT OF ORISSA: CUTTACK
CMP No.1403 of 2016

Nayana Manjari Sahoo 
 V
Rajakishore Sahoo & another
PRESENT:
 DR. JUSTICE A.K.RATH
Citation: AIR 2017 Orissa

Date of judgment: 15.02.2017

Dr. A.K.Rath, J This petition challenges the order dated 2.9.2016
passed by the learned Addl. Civil Judge (Junior Division), Narasinghpur
in I.A No.06 of 2016 arising out of C.S. No.20 of 2016 whereby the
learned trial court rejected the application of the plaintiff under Order
26 Rule 9 CPC holding, inter alia, that the appointment of commission
can only be considered after closure of evidence.
2. The petitioner as plaintiff instituted C.S. No.20 of 2016 in
the court of the learned Addl. Civil Judge (Junior Division),
Narasinghpur for permanent injunction impleading the opposite parties
as defendants. The case of the plaintiff is that she is the owner of an
area of Ac.0.125 dec. appertaining to Khata No.574/376, Plot
No.1865/2948 of Mouza-Paikapadapatna in the district of Cuttack. The
defendant no.1 is the adjacent owner of the suit land towards the
northern side. The suit land is bounded by pillars. Taking advantage of 2
the absence of the plaintiff, defendant no.1 removed the boundary
pillars and stacked the materials to build a house. The plaintiff applied
for demarcation of the suit land in Misc. Case No.12 of 2016 before the
Tahasildar, Narasinghpur. The defendant no.1 did not allow the amin to
measure the land. Defendant no.1 continued the construction work
forcibly and unauthorisedly encroaching upon the suit land.
3. Pursuant to issuance of summons, defendants entered
appearance and filed a written statement denying the assertions made
in the plaint. The specific case of the defendants is that they have not
encroached upon any portion of the suit land. While the matter stood
thus, the plaintiff filed an application under Order 26 Rule 9 CPC to
depute an amin commissioner for identification and demarcation of the
suit land. It is stated that she made an application to the Tahasildar,
Narasinghpur to depute an amin to demarcate the suit land. The
defendants did not cooperate for which the amin was unable to identify
the land. The defendants filed an objection to the same. Learned trial
court came to hold that no evidence has been adduced by the parties.
Appointment of commission can be considered after closure of evidence,
when the court finds it difficult to pass effective decree on the existing
evidence. Held so, learned trial court rejected the application.
4. Heard Mr. Mantry, learned counsel for the petitioner and
Mr. Pradhan, learned counsel for the opposite parties.
5. Mr. Mantry, learned counsel for the petitioner, argued with
vehemence that the learned trial court fell into patent error in holding
that the commissioner can be appointed after closure of evidence. He
submitted that the commissioner can be appointed at any stage of the
suit. Since the dispute pertains to identification of the land, learned
trial court has committed manifest illegality in rejecting the application.
6. Per contra, Mr. Pradhan, learned counsel for the opposite
parties, submitted that since the learned trial court has observed that 
the commissioner can be appointed after closure of evidence, the order
requires no interference.
7. Order 26 Rule 9 provides as follows;
“9. Commissions to make local investigations.- In any suit
in which the court deems a local investigation to be
requisite or proper for the purpose of elucidating any
matter in dispute, or of ascertaining the market value of
any property, or the amount of any mesne profits or
damages or annual net profits, the court may issue a
commission to such person as it thinks fit directing him
to make such investigation and to report thereon to the
court.”
8. On an interpretation of the said Rule, in Bhabesh Kumar
Das v. Mohan Das Agrawal, 2015 (II) CLR 603, this Court held as
under:
“In the case of Prasanta Kumar Jena vs.
Choudhury Purna Ch. Das Adhikari, 99 (2005)
CLT 720, the learned Single Judge of this
Court held that an application under Order 26
Rule 9 C.P.C. can be considered only after
closure of the evidence when the court finds
difficult to pass an effective decree on the
existing evidence. Relying on the said decision,
learned Single Judge of this Court set aside the
order of appointment of Survey Knowing
Commissioner for measurement and
demarcation of the land passed by the learned
trial court. The same was challenged before
this Court in the case of Ram Prasad Mishra
Vrs. Dinabandhu Patri and another. The Bench
speaking through Mr.V.Gopala Gowda, C.J.(as
he then was) held that the learned Single
Judge has interfered with the order passed by
the learned trial court in appointing the Survey
Knowing Commissioner ignoring the decision
of this Court in the case of Mahendranath
Parida Vrs. Purnananda Pardia and others, AIR
1988 ORISSA 248. Thus, the decision in the
case of Prasanta Kumar Jena (supra) has been
impliedly overruled by the Division Bench of
this Court.
In Mahendranath Parida (supra), this
Court held that when the controversy is as to
identification, location or measurement of the 
land or premise or object, local investigation
should be done at an early stage so that the
parties can be aware of the report of the
Commissioner and can go to trial prepared.
In Ramakant Naik and others vs. Bhanja
Dalabehera, 2015 AIR CC 1724 (ORI), this
Court held that issuance of a Commission for
local investigation is the discretion of the
Court. While considering the prayer for
appointment of Commission, the Court must
apply its mind to the facts and circumstances
of the case and pass order. No straight jacket
formula can be laid down. Before issuance of
Commission, the Court must be satisfied that
there is prima facie case in favour of the
applicant.
On a reading of Order 26 Rule 9 C.P.C.,
it is manifest that the stage of appointment of
Survey Knowing Commissioner has not been
prescribed. 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 can not be cabined, cribbed or
confined.”
9. In view of the authoritative pronouncement of this Court in
the case of Bhabesh Kumar Das (supra), the order dated 2.9.2016
passed by the learned Addl. Civil Judge (Junior Division), Narasinghpur
in I.A No.06 of 2016 arsing out of C.S. No.20 of 2016 is quashed. The
learned trial court shall decide the application for appointment of
commission on merit.
The petition is allowed. No costs.
 ………………………..
 DR. A.K.RATH, J.
Orissa High Court, Cuttack.
Dated 15th February, 2017/Pradeep.
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