SUSANTA KUMAR BEHERA Vs. THE AUTHORIZED OFFICER

JUDGEMENT

(1.) This matter involves a challenge to the order dated 09.03.2018 passed by the Civil Judge (Junior Division), Rourkela in Civil Suit No. 16 of 2015 appearing at Annexure -5, thereby rejecting an application filed by the defendant-petitioner under Order-26, Rule-9 of the Code of Civil Procedure.

(2.) Short background involved in this case is that Civil Suit No. 16 of 2015 is filed by the opposite parties herein praying for eviction of the petitioner from the suit schedule shop room measuring 8 feet x 24 feet alleged to have been constructed on Hal Plot No. 25/1168, Khata No. 129/16 in Mouza-Bisra, P.S.- Bisra, District-Sundargarh as claimed by the plaintiffs. The defendant, the petitioner herein on his appearance filed written statement, inter-alia, contending that there is no shop room constructed over the suit schedule property and the petitioner neither paid any rent to the opposite parties at the same time disputing existence of 'Landlord' and 'Tenant' between the parties. Admittedly, evidence from both sides is concluded and it is at this point of time and before commencement of the argument, the defendant, the petitioner herein filed the petition under Order-26, Rule-9 of C.P.C. for appointment of a Survey Knowing Commissioner to conduct local investigation / enquiry to find out the physical features of the said Hal Plot No. 25/1168, Khata No. 129/16, Mouza-Bisra, P.S.- Bisra including the ascertainment of its distance from the Main road and submitting report for effective adjudication of the dispute involved therein. In filing the application the petitioner apart from placing the pleadings of the respective parties, taking assistance of the evidence of P.W.1 claiming to be his admission in paragraph-39 of cross-examination to the effect that he has not filed any document to show that "Ekram Market Complex" situates over Plot No. 25/1168 of Khata No. 129/16 and that except this plot, the plaintiffs have no other land. The petitioner-defendant also taking assistance of the statement in cross-examination of the plaintiffs at page-40, contended that the plaintiffs even admitted that Plot No. 25/1168 of Khata No. 129/16 does not situate about 176 feet away from Main Road. It is in the above background of the matter, petitioner defendant justified the necessity of deputing a Commission to find out the actual position of the shop room.

(3.) The opposite parties-plaintiffs filing their objection to the aforesaid application submitted that the suit involved is for eviction of the petitioner-defendant and also for realization of arrear rent and damages. It is also contended that there exists a tenancy agreement executed between the opposite partiesplaintiffs and the petitioner-defendant and marked as Ext.3. Signature of the petitioner-defendant in Ext.3 has also been admitted by the petitioner-defendant in paragraph-39 of his evidence. In paragraph-33 the petitioner-defendant even has admitted that he is a tenant in respect of the suit schedule property, the petitioner-defendant also admitted in his evidence that the schedule shop situates in "Ekram Market complex". Taking help of the provision at Sections 115 and 116 of the Evidence Act the petitioner-defendant also contended that for the existence of the agreement between the parties accepting 'Landlord' and 'Tenantship' between the parties involved therein, a party to such document is debarred from taking up the dispute on 'Landlord' and 'Tenant' relationship. The plaintiffs also objected the petition on the premises that in an earlier attempt of the petitioner-defendant in a petition under Order-16, Rule-1 of C.P.C. asking the Court to direct the Tahasildar, Bisra to produce the original Khata No. 13 and Khata No. 129/2 having been rejected and for such development, subsequent petition was also otherwise not maintainable. It is thus contended that the attempt of the petitioner-defendant through the present petition is to overcome the rejection of application under Order-16, Rule-1 of CPC at an earlier occasion involving the same suit.