Orissa High Court
Sashi Sahani & Others vs Basanta Kumari Mohanty & Others ... ... on 1 May, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.1344 of 2024
Sashi Sahani & others ... Petitioners
Mr. Bikram Senapati, Advocate
-Versus-
Basanta Kumari Mohanty & others ... Opposite parties
Mr. P.K. Bhuyan, Advocate
(O.P. Nos.1 to 3)
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
01.05.2025
Order No.
03. 1. Heard Mr. Senapati, learned counsel for the petitioners and
Mr. Bhuyan, learned counsel for the opposite parties.
2. Instant petition is filed by the petitioners challenging the
impugned order dated 8th October, 2024 passed in T.S. No.167 of
1995 as at Annexure-6 by learned Civil Judge (Jr. Division), Puri on
the grounds stated therein.
3. A copy of the plaint is at Annexure-1 and the same is
perused. The opposite parties as plaintiffs instituted the suit seeking
relief of injunction simplicitor.
4. Mr. Senapati, learned counsel for the petitioners submits
that during and in course of the suit in T.S. No.167 of 1995, an
application for demarcation of the suit schedule land through a
Survey Knowing Commissioner was applied for and insisted upon but
the same was not entertained, as against which, a revision was filed
and in the meanwhile, the suit was disposed of. The appeal in T.A.
No.15/50 of 2002/2000 was challenged by the opposite
parties/plaintiffs in SAO No.20 of 2007 which was at last withdrawn
in the year 2015. The further submission of Mr. Senapati, learned
counsel is that T.A. No.15/50 of 2002/2000 was disposed of vide
judgment dated 8th May, 2007 with remand and a direction to
depute a Survey Knowing Commissioner for demarcation and an
opportunity of examination of such Commissioner in case a report
adverse to a party is received. The submission is that upon such
disposal of the appeal by the learned Additional District Judge, Puri,
the Survey Knowing Commissioner was appointed and deputed for
demarcation of the case land and accordingly, a report was received,
to which, an objection dated 11th September, 2024 was filed by the
petitioners and thereafter, it led to the passing of the impugned order
i.e. Annexure-6 denying such examination of the Commissioner. The
submission is that as the report was adverse to the petitioners and in
view of direction in T.A. No.15/50 of 2002/2000, liberty was
granted for cross-examination of the Survey Knowing Commissioner,
it ought to have been allowed by the learned Court below instead of
the impugned order i.e. Annexure-6.
5. Mr. Bhuyan, learned counsel for the opposite parties
submits that such examination of the Survey Knowing Commissioner
was held to be not necessary by the learned Court below. The further
submission is that any such examination of Survey Knowing
Commissioner shall have to be in terms of Order 26 Rule 9 CPC. In
reply and response to the above, Mr. Senapati, learned counsel for
the petitioners would submit that the report is attached to such an
application as per Annexure-4 with an objection filed. Mr. Bhuyan,
learned counsel for the opposite parties however defends Annexure-6
and contends that the report has been accepted by the learned Court
below and therefore, no direction is needed for examination of
Survey Knowing Commissioner.
6. In course of hearing, Mr. Senapati, learned counsel for the
petitioners refers to a decision of this Court in Surajmal Khandalwalla
and others Vrs. Krushna Chandra Das and others 1986 (II) OLR 325
and contends that since an objection was filed by the petitioners, the
Survey Knowing Commissioner should be examined and hence, it
ought to have been allowed.
7. According to Order 29 Rule 9 CPC, a report of the
Commissioner shall be evidence in the suit and form part of the
record and the Court at the instance of the parties to the suit may
examine the Commissioner personally touching upon any of the
matters referred to him or mentioned therein or as to such report or
as to the manner the investigation has been held and concluded. In
the decision (supra), the Court had the occasion to consider
examination of Survey Knowing Commissioner and therein, it has
been held that if one of the parties files objection, the Commissioner
should normally be examined and cross-examined and thereafter, to
pass an order either to accept or reject it. In the case at hand, the
petitioners filed an objection as per Annexure-4 with the grounds of
challenge to the acceptance of the report. It is no doubt true to claim
that acceptance or otherwise of the report is the discretion of the
Court concerned but in case, any such objection is received, it has to
be well attended to. On a reading of the objection dated 11th
September, 2007, the details of the investigation and objection to the
manner of demarcation held by the Survey Knowing Commissioner
have been pleaded, which in the considered opinion of the Court,
should have been duly examined. Upon a bare reading of the
impugned order Annexure-6, this Court finds that the points detailed
in the objection i.e. Annexure-5 have not been attended by the
learned Court below. In view of the case law cited above, this Court
is in agreement that in case, any such objection is received, it is the
bounden duty of the Court to consider the same and to take a
decision judiciously and direct for examination of Survey Knowing
Commissioner and thereafter, to pass necessary order either to accept
or reject the same. In the case at hand, this Court is not satisfied with
the reasons assigned by the learned Court below while denying
examination of the Survey Knowing Commissioner on the application
of the petitioners and therefore, for the discussions as above, the
impugned order at Annexure-6 is liable to be interfered with.
8. Accordingly, it is ordered.
9. In the result, CMP stands allowed. Consequently, the
impugned order dated 8th October, 2024 as at Annexure-6 passed in
T.S. No. 167 of 1995 by the learned Civil Judge (Junior Division), Puri
is hereby set aside with the direction for examination of the Survey
Knowing Commissioner for a just decision vis-à-vis report received
from him with reference to the objection i.e. Annexure-4 and then,
to pass necessary orders in terms of Order 26 Rule 9 CPC. It is further
directed that the learned Court below shall do well to expedite the
hearing of the suit and ensure disposal of the same within four
months from the date of receipt of the Court's order. In the
circumstances, there is no order as to costs.
10. Issue urgent certified copy as per rules.
(R.K. Pattanaik)
Judge
Alok
