Orissa High Court
Prafulla Kumar Sarangi And Others vs Laxmi Narayan Mohapatra And ... on 3 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 540 OF 2022
Prafulla Kumar Sarangi and others .... Petitioners
Mr. Banshidhar Baug, Advocate
-versus-
Laxmi Narayan Mohapatra and others .... Opp. Parties
Mr. Dwarika Prasad Mohanty, Advocate
(For Opp. Party No.1)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 03.08.2023
5. 1. This matter is taken up through hybrid mode.
2. Order dated 19th May, 2022 (Annexure-4) passed by
learned 1st Additional Senior Civil Judge, Balasore is under
challenge in this CMP, whereby rejecting the report of survey
knowing commissioner, learned trial Court directed for
appointment of a fresh survey knowing commissioner.
3. Mr. Baug, learned counsel for the Petitioners submits
that assailing the judgment passed in T.S. No.878 of 1998, the
Plaintiffs-Petitioners preferred RFA No.27/80 of 2010-2007,
which was disposed of vide judgment dated 13th October, 2011
with the following order:
"The appeal is allowed. Judgment dated
31.03.2007 and decree dated 12.04.2007 passed by the
Court below in T.S. No.878 of 1998 is set aside. The
suit be remanded to the Court below for giving a fresh
finding with regard to Issue No.5 which have not at all
been dealt with. It is further directed that a Survey
Knowing Amin Commissioner by deputed at the cost of
both the parties and after perusing the report of the
Survey Knowing Amin Commissioner and giving an
opportunity to both sides, for adducing evidence the
suit be disposed of on merit within a period of six
// 2 //
months from the date of acknowledgement of the case
record.
Pronounced in the open Court on this the 13th
day of October, 2011."
Accordingly, learned trial Court on the application of the
Plaintiffs appointed a survey knowing commissioner. However,
his report was rejected. Subsequently, another survey knowing
commissioner was deputed and his report has been marked as
Ext.C/6. After the document has been marked as Ext.C/6,
learned trial Court proceeded to hear the merit of survey
knowing commissioner's report by conducting a piecemeal trial
and rejected the said report vide order dated 19th May, 2022 and
further directed for appointment of a fresh survey knowing
commissioner.
3.1 It is further submitted by Mr. Baug, learned counsel for
the Petitioners that once the report of survey knowing
commissioner has been marked as Ext.C/6, it becomes a part of
the record and shall be considered on a piece of evidence. The
same should not have been rejected before final argument in the
suit took place. Learned trial Court by conducting a piecemeal
trial rejected the report of survey knowing commissioner, which
is not permissible under law. In support of his contention, he
relied upon the decision in the case of Laltoomani Mohanty -v-
1st Additional District Judge, Cuttack and others, reported in
1996 (I) OLR 342, in which it is held that the report of survey
knowing commissioner is to be considered as a piece of
evidence along with other materials available on record. He
also relied upon the decision in the case of Subal Kumar Dey
// 3 //
-v- Purna Chandra Giri and others, reported in 1989 (I) OLR
398, wherein it is held that the report of survey knowing
commissioner is a piece of evidence. It is, thus, submitted that
once it is marked as Ext.C/6, learned trial Court has committed
an error of law in rejecting the report of survey knowing
commissioner before final argument of the suit took place. He,
therefore, prays for setting aside the impugned order under
Annexure-4 and to consider the report of survey knowing
commissioner along with other materials available on record at
the time of argument of the suit.
4. Mr. Mohanty, learned counsel for Opposite Party No.1
submits that there is no dispute to the point of law raised by Mr.
Baug, learned counsel for the Petitioners. Since the Petitioners
have not raised any objection to the exercise made by learned
trial Court to consider the merit of the report of survey knowing
commissioner and participated in the hearing, they should not
raise any objection to the impugned order at any subsequent
stage. He, however, submits that the report of survey knowing
commissioner should be considered as a piece of evidence along
with other materials available on record.
5. Considering the submissions made by learned counsel
for the parties, this Court is of the considered opinion that once
the report of survey knowing commissioner has been marked as
Ext.C/6, it could not have been rejected before final argument of
the suit. Acceptability and relevancy of that report can only be
considered at the time of argument of the suit. Thus, examining
the merit of the report of survey knowing commissioner before
commencement of final argument of the suit, learned trial Court
// 4 //
has not only conducted a mini trial but also failed to adhere to
the established procedure of law.
6. In view of the above, this Court has no hesitation to set
aside the impugned order under Annexure-4. Accordingly, the
impugned order under Annexure-4 is set aside. It is observed
that acceptability and merit of the report of survey knowing
commissioner marked as Exct.C/6 can be considered at the time
of final argument of the suit.
7. The CMP is accordingly disposed of.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
bks Judge
Signature Not Verified
Digitally Signed
Signed by: BIJAY KUMAR SAHOO
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 04-Aug-2023 14:57:17
