Prabhabati Padhan vs Kamal Kumar Agrawal
2023 Latest Caselaw 2449 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   CMP No. 208 of 2023
                 Prabhabati Padhan                           ....       Petitioner
                                                 Mr. Amit Prasad Bose, Advocate
                                               -versus-
                 Kamal Kumar Agrawal                             ....        Opp. Party

                            CORAM:
                           JUSTICE K.R. MOHAPATRA
                                          ORDER

Order No.                                27.03.2023

 1.         1.      This matter is taken up through Hybrid mode.

2. Order dated 7th February, 2023 (Annexure-1) passed by learned Senior Civil Judge, Bargarh in CS No.134 of 2005 is under challenge in this CMP, whereby the report of the Survey knowing Commissioner was accepted.

3. Mr. Bose, learned counsel for the Petitioner submits that CS No.134 of 2005 was decreed on contest and counter-claim filed by the Defendant/Opposite Party was dismissed. Assailing the same Defendant/Opposite Party preferred two Appeals, i.e., RFA Nos.17 and 18 of 2013, which were allowed by learned District Judge, Bargarh, vide judgment dated 31st July, 2015 remitting the matter to learned trial Court with the following direction:-

"7. In the result, the appeals under Section 96 read with Order XLI Rule 1 of the Code, at the behest of appellant stand allowed against the respondent No.1 on contest and others without contest. As a necessary corollary, the impugned judgment and decree dated 05.04.2013 promulgated in Civil Suit No.134 of 2005 by the learned Civil Judge (Senior Division), Bargarh is hereby set aside.

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Consequently, it is directed that the learned Court below shall appoint and depute a Civil Court Commissioner to ascertain whether the suit schedule 'A' land is a part and parcel of H.S. Plot No.106 and correspondingly, of Ac.0.42 decimal sold under Ext.A and on the receipt of report, considering the material evidence on record and without being influenced by the observations of the Court in appeal shall dispose of the suit as well as cross suit covering all the issues on merit and in accordance with law. In the circumstances, however, parties to bear respective costs throughout."

Accordingly, learned trial Court deputed a Survey knowing Commissioner to work out the direction of learned appellate Court. The Commissioner submitted his report on 20th March, 2017. Thereafter, the Plaintiff/Petitioner cross-examined the Survey knowing Commissioner in detail. Mr. Bose drew attention of this Court to paragraphs-7, 8, 12, 14 and some other paragraphs stating that the local investigation conducted by the Survey knowing Commissioner was perfunctory. Thus, the report could not have been accepted in evidence. Although specific objection was raised with regard to admissibility of the Commissioner's report, learned trial Court without discussing the same accepted the report of the Commissioner on the ground that the objections raised by the Commissioner can be considered at the time of argument of the suit. It is his submission that objection with regard to admissibility of the report should have been considered at the threshold in order to avoid complication. Learned trial Court did not at all consider the same and mechanically accepted the report of the Survey knowing Commissioner in evidence.

3.1 It is his submission that no doubt the report of the Survey knowing Commission is a piece of evidence which can

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be considered along with other materials on record. But the question with regard to admissibility of the said report has to be considered at the threshold. He, therefore, submits that the impugned order is not sustainable in the eye of law and is liable to be set aside. Learned trial Court may be directed to consider the admissibility of the report of the Survey knowing Commissioner at the afresh before proceeding further in the suit.

4. Considering the submission of learned counsel for the Petitioner and on perusal of the impugned order, it appears that none of the objections raised by the Petitioner was taken into consideration by the learned trial Court while considering the admissibility of the report of the Commissioner. Since the Petitioner raises the question of admissibility of the report of the Survey knowing Commissioner in evidence it should have been considered at the threshold. In that view of the matter, this Court feels that the matter requires fresh consideration.

5. In view of the nature of dispute involved and order proposed to be passed in this case, this Court feels that no fruitful purpose will be served by keeping the CMP pending awaiting response of the Opposite Party. Accordingly, order under Annexure-1 is set aside and the matter is remitted to learned trial Court to consider admissibility of the report dated 20th March, 2017 of the Commissioner at the afresh before proceeding further in the suit.

6. With the aforesaid observation and direction, the CMP is disposed of.

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7. Since the CMP is disposed of without issuing notice to the Opposite Party, he is at liberty to seek for variation of this order if he feels aggrieved.

Issue urgent certified copy of the order on proper application.

(K.R. Mohapatra) Judge

s.s.satapathy