Orissa High Court
Kamalakanta Biswal & vs Bishnu Mohan Panigrahi & .... Opp. ... on 18 March, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.404 of 2021
Kamalakanta Biswal & .... Petitioners
others Mr.Gautam
Misra, Senior
Advocate
-versus-
Bishnu Mohan Panigrahi & .... Opp. Parties
others Mrs.Reena
Nayak,
Advocate
CORAM:
JUSTICE SIBO SANKAR MISHRA
Order ORDER
No. 18.03.2025
09.
1. Heard Mr. Gautam Misra, learned Senior
Advocate appearing on behalf of the petitioners and
Mrs. Reena Nayak, learned counsel appearing on
behalf of the opposite parties.
2. The petitioners are the legal heirs of the original
defendant No.8 (b) in Title Suit No.137 of 1996-I. The
respondent Nos.1 to 3 being the plaintiff Nos.2 to 4,
have filed the Partition Suit being Partition Suit
No.137/1996-I before the learned Civil Judge (Senior
Division), Bhadrak seeking partition of the suit land.
3. The preliminary decree and judgment was passed
by the learned Civil Judge (Senior Division), Bhadrak
vide judgment dated 29.03.2008. Aggrieved thereby,
the respondent Nos.1 to 3 have preferred appeal being
RFA No.35 of 2008, which is pending before the
learned Additional District Judge, Bhadrak.
4. In the First Appeal, the respondent Nos.1 to 3
filed I.A. No.10 of 2019 seeking interim injunction
under Order-XXXIX, Rules-1 & 2 CPC. The learned
Appellate Court declined to grant injunction and
dismissed the application vide its order dated
26.09.2019. The appellate Court has observed thus:
"Heard both sides. Perused the entire case record. In
the original suit, the gift deed dtd. 10.11.1951 and
the sale deed dtd. 31.05.1960 (Exts.3 & 4
respectively) are under challenge. In such a situation
prima facie case can be answered in faavour of the
appellant-petitioners. However, it is the admitted case
of the petitioners that the suit land is home stead
land. So, any construction over the same will no way
change the nature and character of the suit land. The
petitioners have admitted that the O.Ps. have raised
construction illegally up to roof level. When the
construction is already completed up to roof level, if at
this stage the O.Ps. are restrained from casting roof
then the inconvenience will be caused to the O.Ps. On
the other hand if no order of injunction is passed the
petitioners will not be prejudiced in any manner as it
will not change the nature and character of the suit
land and there are existing structures over the suit
land. So, considering all these facts it appears that at
this stage passing an order of injunction will cause
great inconvenience and irreparable loss to the O.Ps."
5. The said order attained its finality. After lapse of
about two years, the same respondent Nos.1 to 3 filed
another application being CMA No.3 of 2021, inter
alia, seeking to allow them to repair their house and
thatch it. In the very same application, the present
petitioners have also moved another application under
Order-XI, Rule-1 CPC putting forth the interrogatives.
The learned Appellate Court dealt with the said CMA
No.3 of 2021 and passed the impugned order dated
13.07.2021. The Appellate Court, while disposing of
the application, has inter alia, observed thus:
"While the aforesaid petition was posted for
hearing the O.P. Nos.1 to 6 jointly present in the
above petition i.e. u/o. 11 Rule-1 of C.P.C. and
under the said petition they have made query
"whether the petitioner has a double storied R.C.C.
roof and asbestos over plot no. 193/615 and
317/707 of Mouza Andola ? and in reply to same,
the present petitioners in CMA No.03/21 gave
answers that the residential house, kitchen house
and cowshed vide House No.141 are situate in
village Andola on case land property vide MS Plot
No.194 And 195 and denial of the respondents
about it is based on blatant lie and the tile of the
respondents is challenged under the appeal and
the interrogatory petition is no way related to CMA
No.03/21 and the same is not maintainable."
In view of the queries and the related replies
submitted by both sides u/o.11 Rule 1 C.P.C. and
further to dispose of the CMA No.03/21. It is
necessary to appoint an Advocate Commissioner at
the cost of the petitioners under CMA No.3/21.
Accordingly, put up on 29.07.21 for payment of cost
of Rs.1200/- (Twelve hundred only) and
appointment of Advocate Commissioner."
6. The present petitioners are aggrieved by the
aforementioned order. Hence, they have filed the
present proceeding.
7. The matter was taken up for hearing before this
Court on 23.08.2021 and the operation of the
impugned order was stayed. Subsequently, when the
matter was again taken up for hearing on 25.07.2023
and 06.11.2023, this Court sought for a report from
the learned Additional District Judge, Bhadrak
regarding the status of the pending RFA No.35 of
2008. In compliance to the said direction of this Court
dated 25.07.2023 and 06.11.2023, two reports have
been placed on record by the learned Additional
District Judge, Bhadrak.
8. Perusal of the last report dated 10.11.2023
indicates that the application under Order-XXII, Rule-
4 CPC has been moved to bring on record the LRs of
the respondent No.4. After allowing the application,
the consolidated appeal memo has already been filed.
The record is at the stage of service of notice on the
respondents awaiting return of the summons.
9. Mr. Misra, learned Senior Advocate appearing for
the petitioners contended that the impugned order is
not sustainable under law primarily on two counts.
Firstly, the same Court had earlier rejected the
application being I.A. No.10 of 2019 under Order-
XXXIX, Rules-1 & 2 CPC. Therefore, the impugned
order is tantamounting to revisiting its earlier order.
Secondly, none had prayed for appointment of the
Advocate Commissioner. However, the Appellate Court
out of blue has passed the order appointing the
Advocate Commissioner by the impugned order to
ascertain the possession over the suit land. He has
attacked the impugned order on the ground that the
learned Additional District Judge, Bhadrak has
committed a grave jurisdictional error because
appointment of such Advocate Commissioner would
amount to collecting fresh evidence to enure benefit to
the respondent Nos.1 to 3. He has also questioned the
impugned order to the extent that the application of
the petitioner under Order-XI, Rule-1 CPC has not
been dealt with by the Appellate Court.
10. Mr. Misra, learned Senior Advocate has drawn
my attention to the judgment of this Court in the case
of Swaroop Sekhar Jee & others vs. Ghanashyam
Panda, reported in 84 (1997) C.L.T. 780. He has
drawn my attention to the following paragraph:
"In the present case though no Survey-knowing
Commissioner had been appointed in the trial court
and as such the question of rejecting or accepting
the report of the Commissioner did not arise, yet the
ratio of the principle laid down in the aforesaid
decision is applicable. The lower appellate court
should have considered the question of appointment
of a Survey knowing Commissioner only after
scanning the evidence and if it would have
considered that the evidence on record was not
sufficient to dispose of the matter, the question of
appointing a Survey knowing Commissioner for the
purpose of identification should have been
considered. I agree with the contention of the
learned counsel for the petitioners that the impugned
order has been passed with material irregularity.
Accordingly, while setting aside the impugned order
of the lower appellate court, I direct that the
application of the defendant-appellant for
appointment of a Survey knowing Commissioner is
to be considered by the lower appellate court at the
time of h earing of the appeal and if after scanning
the evidence on record, the lower appellate court
comes to a conclusion that the question cannot be
resolved on the basis of evidence on record, the
question of appointment of a Survey knowing
Commissioner shall be considered."
11. By citing the aforementioned paragraphs of the
cited judgment, he has submitted that the
appointment of the local Commissioner could possibly
be made after the appellate court evaluating the
evidence already come on record in the suit
proceeding.
12. Mrs. Reena Nayak, learned counsel for the
opposite parties, on the contrary, has tried to justify
the impugned order. She has submitted that the order
of appointing the Advocate Commissioner has been
made on the application of her client under Section
151 CPC, wherein they had prayed to give permission
for annual thatching preparation of their residential
house, cowshed and their kitchen house that situates
and stands on the subject land. The subject land,
where the house is situated is in a very dilapidated
condition. Therefore, essential repair by means of
annual thatching for its existence and survivability
has been taken into consideration by the Court. In the
fitness of the attending circumstances, the Court
below has allowed the application under Section 151
CPC and appointed the Advocate Commissioner.
Therefore, the impugned order is non-prejudicial to
the parties. Rather, it helps for the just decision of the
pending lis. She has also relied upon the judgment of
the Hon'ble Supreme Court in the case of Manohar
Lal Chopra vs. Rai Bahadur Rao Raja Seth
Hiralal, reported in 1962 AIR 527. Relying upon the
judgment in Manohar Lal (supra), Mrs. Nayak, learned
counsel submits that the Civil Court possesses
enough power under Section 151 CPC to pass such
order and appoint the Advocate Commissioner.
13. I have carefully gone through the materials
placed on record and the judgments cited by the
learned counsels for the parties at the Bar. In the
present case, the partition suit was filed way back in
the year 2008. Preliminary decree has already been
passed by the learned Civil Judge (Senior Division),
Bhadrak vide its judgment dated 29.03.2008. The
contesting respondent Nos.1 to 3 have already
preferred the appeal, which is pending since 2008.
Meanwhile, the application of the respondent Nos.1 to
3 under Order-XXXIX, Rules-1 & 2 CPC has already
been dismissed by a detailed order dated 26.09.2019.
The said order has not been challenged and allowed to
attain its finality. The order dated 26.09.2019
appointing the Advocate Commissioner is
tantamounting to entering into an arena of
ascertaining the possession of the parties in the suit
premises. If the Advocate Commissioner is allowed to
bring on record the report that may threaten to
overreach the order dated 26.09.2019 passed by the
learned Appellate Court while disposing of the
application under Order-XXXIX, Rules-1 & 2 CPC.
Moreover, in absence of the specific prayer for
appointing the Advocate Commissioner, the Appellate
Court, without even affording the opportunity to the
petitioner, has appointed the Advocate Commissioner,
which would tantamount to collecting the evidence in
one way or other. Therefore, the submission of Mr.
Misra, learned Senior Advocate that this exercise
could possibly be done after the appreciation of the
evidence already on record while dealing with the
appeal would hold water. In this circumstance, this
Court is of the view that sustainance of the impugned
order would cause injustice. Rather, it would be
appropriate for the learned Appellate Court to dispose
of the appeal on its merit. If the appellate court finds it
necessary after evaluating the evidence may pass any
such order on the application of either party in
accordance with law.
14. Since the report of the learned Additional District
Judge, Bhadrak indicates that the record of the appeal
is awaiting the service of summons on the
respondents, it would be expedient that the appeal
proceeding is expedited so that the entire dispute
could be decided for all times to come.
15. Therefore, the interlocutory order passed by the
learned Appellate Court is not enuring to the benefit of
the either parties, rather attribute to the delay caused
in the disposal of the appeal.Hence, this Court set
aside the impugned order dated 13.07.2021 passed by
the learned Additional District Judge, Bhadrak in
CMA No.3 of 2021 arising out of RFA No.35 of 2008.
At the same time, the learned Additional District
Judge, Bhadrak is directed to do well to see that the
RFA No.35 of 2008 pending before it is disposed of as
early as possible, preferably within a period of six
months hence.
16. The CMP is disposed of.
(S.S. Mishra)
Judge
Subhasis
Designation: Personal Assistant
Location: HIgh Court of Orissa, Cuttack.
Date: 19-Mar-2025 19:39:54
