SMT. SANTI DEVI AGRAWALLA Vs. MANGTALAL AGARWALLA

JUDGEMENT

(1.) Challenge has been made in this writ petition to the order dated 22.12.2005 passed by the learned Civil Judge (Senior Division), Boudh in Civil Suit No. 25 of 2005 allowing the application filed -by opposite party No. 1 who is Defendant No. 1 under Order 26 Rule 9 of the Code of Civil Procedure.

(2.) From the impugned order, it reveals that the trial Court has allowed the application of Defendant No. 1 to depute a survey knowing civil Court commissioner. Plaintiff filed objection to the said petition on the ground that the disputed land has already been demarcated at various stage by the Revenue Inspector and Amin. Therefore, further deputation of a survey knowing commissioner is not necessary and the suit has been filed for declaration of easementary right over the disputed 5 feets of the land which is marked as 'D' in the sketch map filed by the Plaintiff. Defendants appeared in the suit and filed their written statement claiming their possession over the disputed land. However, they have disputed the sketch map, R.I. and Amin reports. From the above disputed facts the trial Court has held that to appreciate the clear picture and condition of the disputed land, deputation of a survey knowing commissioner is necessary as a doubt has been created in the minds of the Court. Law is well settled that the provision under Order 26, Rule 9 of the Code of Civil Procedure confers a discretion on the Court but the said discretion has to be exercised in a judicious and sound manner. What is necessary to note in the provision is the expression "deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute". Therefore, where the Court deems a local investigation to be requisite and proper, ordinarily it should not decline to exercise jurisdiction. Where the controversy between the parties is the area of the land or identification or location of an object or the land, local investigation is necessary, essential, requisite or proper. It will not be a sound exercise of discretion without anything more to decline to appoint a commissioner. Since this being the position, the trial Court has rightly done the substantial justice by deputing a survey knowing civil Court commissioner for the said purpose.

(3.) However, the learned Counsel appearing for the Petitioner has cited a decision reported in, 2006 (XI) OLR 43 Dhadi Muduli v/s. Natabar Muduli where it has been held by this Court on the said facts and circumstances of the case deputing a survey knowing commissioner was not required and the Court may depute a survey knowing commissioner for the purpose of identification of a suit property if he feels it is difficult on the part of the Court to pass an effective decree. It is well settled that a little difference in facts or additional facts may make a lot of difference in the presidential value of a decision. Judicial utterances are made in the setting up the facts of a particular case. Therefore, the said decision is not applicable to the facts and circumstances of the present case.