SUBAS CHANDRA RATH Vs. SRINANDAN MOHANTY

JUDGEMENT

(1.) HEARD .

(2.) THIS writ petition stands disposed of at the stage of admission.

(3.) LEARNED counsel for the petitioner argues that in this case the Court below has acted beyond jurisdiction by considering the application under Order 39, Rule 7 C.P.C. as an application under Order 26, Rule 9 C.P.C. He also argues that it is the duty of the plaintiff to produce his evidence in support of the allegation and by the impugned order the Court cannot assist the plaintiff to collect evidence. He also argues that in the plaint when the plaintiff has admitted about construction on the disputed area having already been done by the defendant -petitioner, therefore, there is no necessity to depute a survey knowing Commissioner to make an investigation if any construction has been made. Accordingly, he prays to set aside the impugned order. In support of his contention, he refers to and relies on the cases of Subal, Kumar Dey v. Purna Chandra Giri and Ors., A.I.R. 1989 Orissa, 214, K. Raghunath Rao v. Smt. Tumula Jailaxmi, Vol. 64, (1987) C.L.T. 304, and Indramani Behera v. Ghanashyam Behera, 62 (1986) C.L.T. 398.