BADAL SABAR Vs. UJJALA DEBNATH

JUDGEMENT

(1.) Heard Mr. S. Das, learned counsel appearing for the petitioner as well as Mr. S. Lodh, learned counsel appearing for the sole respondent.

(2.) This is a petition under Article 227 of the Constitution of India urging for interference in the order dated 09.01.2020 delivered in Title suit No.18 of 2017 by the Civil Judge, Jr. Division, Khowai, Khowai Tripura. By the said order dated 09.01.2016, the Civil Judge has rejected the prayer of the petitioner for discarding the report of the Survey Commissioner as appointed by the said court. Thus, the report submitted by the Survey Commissioner has been accepted by the Civil Judge.

(3.) The said order has been questioned by the petitioner on the ground that neither the court nor the Survey Commissioner has complied the provision of Order XXVI, Rule 18 of the CPC. It is made imperative under Order XXVI, Rule 18 of the CPC that where a Commission for local inspection is appointed under Order XXVI, Rule 9 of the CPC "the Court shall direct that the parties to the suit shall appear before the Commissioner in person or by their agents or pleaders." The Survey Commissioner was appointed by the order dated 18.02.2019, but there was no direction in terms of Order XXVI, Rule 18 of the CPC, meaning the parties in the suit were not directed to appear before the Survey Commissioner during the survey. On scrutiny of the records, it appears that even the terms of the local investigation was not laid down following the requirements of Order XXVI, Rule 9 of the CPC. Order XXVI, Rule 9 of the CPC provides that in any suit in which the court deems a local inspection to be requisite or proper for purpose of "elucidating any matter in dispute or of ascertaining the market value of any property or the amount of any mesne profit or damage or annual net profit", the court may issue commission of such person as it thinks fit directing to make "such investigation and to report thereon" to the court.