DHULESWAR SETHI Vs. SANKARSAN DALAI

JUDGEMENT

(1.) This matter is taken up through hybrid mode.

(2.) Order dtd. 5/4/2024 (Annexure-6) passed in C.S. No.629 of 2023-I is under challenge in this CMP, whereby learned Senior Civil Judge, 1st Court, Cuttack allowed an application filed by the Plaintiffs-Opposite Parties under Order XXVI Rule 9 C.P.C. for deputing a Survey Knowing Commissioner for identification of the suit property.

(3.) Mr. Mohanty, learned counsel for the Petitioners submits that the suit land is a gali rasta. A suit has been filed by the Plaintiffs-Opposite Parties for easement right. Overwhelming evidence is available on record to identify the suit property. In spite of the same, an application under Order XXVI Rule 9 C.P.C. was filed in the midst of trial. Although a detailed objection was filed by the Defendants-Petitioners to the Petition under Order XXVI Rule 9 C.P.C., but without discussing the same, the impugned order under Annexure-6 has been passed relying upon the principles in Rahul S. Shah 'v- Jinendra Kumar Gandhi, reported in 2021 (I) OLR SC 1058. Learned trial Court has also not discussed the applicability of the ratio decided in Rahul S. Shah (supra) to the instant case. He, therefore, prays for setting aside the impugned order under Annexure-6 and to remit the matter to learned trial Court for fresh consideration of the petition under Order XXVI Rule 9 C.P.C. keeping in mind the objection raised by the Defendants-Petitioners.