JYOTSNARANI MISHRA Vs. PURNA CHANDRA MISRA

JUDGEMENT

(1.) The petitioner is defendant No. 1 in T.S. No. 123 of 1999 pending in the Court of the Civil Judge (SD), Dhenkanal. The said suit has been filed by the opposite party as the sole plaintiff. In course of proceeding of the suit the plaintiff filed a petition under Order 26, Rule 9 of the Code of Civil Procedure with a prayer to depute a survey -knowing commissioner for the purpose to (1) measure the Hal plot Nos. 256 and 257 with reference to Sabike plot No. 263; (2) to investigate and report as to whether the petitioner was in possession, of the land between plot No. 256 and plot No. 257; (3) to submit a report with regard to length and breadth of the existing vacant land; and (4) to investigate as to physical possession of the parties with regard to Hal plot Nos. 256 and 257. The said petition was allowed by the trial Court. Being aggrieved by the order of the trial Court the present petitioner filed W.P.(C) No. 11553 of 2003 before this Court. This Court disposed of the said Writ Petition quashing the order of the trial Court but then directing that if the plaintiff would feel that evidence of a survey knowing person was necessary for proper adjudication of the suit, then illegally permissible and so advised he may take appropriate steps in accordance with law.

(2.) THEREAFTER the plaintiff filed another petition before the trial Court under Order 26, Rule 9 CPC. According to the plaintiff a portion of the land belonging to him which is the subject -matter of the suit, has been amalgamated with the adjoining lands and unless a survey -knowing commissioner was deputed it would not be possible to demarcate the said land. The aforesaid averment of the plaintiff was strongly repudiated by the learned Counsel for the defendant mainly on the ground that this Court had earlier rejected such prayer of the plaintiff and in fact the sole aim of the plaintiff by making such prayer was to collect evidence for the purpose of the suit. The trial Court after considering the inter se pleadings came to the conclusion that the question of amalgamation of the lands could only be ascertained by measurement of the lands by a survey -knowing commissioner and the report/evidence of that commissioner will assist the Court for better appreciation of the evidence adduced in the suit. It further held that it would not be proper to direct the plaintiff to get the lands measured through any private Amin at that stage as the evidence on both sides had already been closed. Accordingly the trial Court allowed the petition of the plaintiff and directed a Civil Court Commissioner to be deputed to the spot.

(3.) THIS Court heard learned Counsel for both sides at length and perused the records. Law is well settled that appointment of a commissioner is the discretion of Court. In course of hearing of a case on being confronted with certain facts if the Court after due application of mind feels that local investigation and measurement of the land is required for the purpose adjudicating the matter in dispute and other matters ancillary to it, the Court may depute a commission to make such investigation. Normally a survey knowing commissioner is deputed for local investigation to appreciate the evidence already on record though there may be departure in certain cases. The object of local investigation is always not to collect evidence, but to obtain evidence which from its nature can only be had from the spot, and that too by an expert. Cases of boundary dispute and disputes relating to identity of land are the instances where a Court, if satisfied that no effectual decree can be passed, depute a commissioner for local investigation and report. Law is also well settled that report of a commissioner is only a piece of evidence among other evidences adduced to determine the issues involved. In the case at hand, the trial Court after considering all facts and circumstances and being satisfied that for effectual adjudication and passing an effectual decree, a commissioner was required to be deputed, ordered accordingly. The said order does not suffer from any infirmity or illegality, nor is it perverse or calls for interference of this Court in exercise of Certiorari Jurisdiction. This Court, therefore dismisses the Writ Petition, but at the same time observes that if the suit is still pending, the trial Court shall dispose of the same as expeditiously as possible. The Writ Petition is disposed of.