Orissa High Court
Lilibala Sethi vs Satya Sethi .... Opposite Party on 20 November, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 28-Nov-2025 10:49:19
IN THE HIGH COURT OF ORISSA AT CUTTACK
C.M.P. No.986 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Lilibala Sethi .... Petitioner
-versus-
Satya Sethi .... Opposite Party
Advocate(s) appeared in this case:-
For Petitioner : Mr. P. Mohanty, Advocate
For Opposite Party : Mr. R. Das Mohapatra, Advocate
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
20 November 2025
B.P. Routray, J.
1. Heard Mr. P. Mohanty, learned Advocate for the Petitioner and
Mr. R. Das Mohapatra, learned Advocate for the Opposite Party.
2. Present C.M.P. is directed against order dated 07.05.2025 passed
in C.S. No.23 of 2023 by learned Additional Civil Judge (Jr. Divn.),
Ranpur wherein the prayer of the Defendant under Order 26 Rule 9,
C.P.C. was rejected.
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 28-Nov-2025 10:49:19
3. Present Opposite Party, who is the Plaintiff, has filed the suit
praying for eviction of the Defendant (present Petitioner) from suit
premises.
4. According to the Plaintiff, the suit premises is his land falling to
his share as per the previous partition held in the family. Admittedly,
the suit land is a part of the property belonged to the common ancestor,
namely, Late Lochan Sethi, who had five sons. Plaintiff is one of the
sons and the husband of the Defendant is another son. Admittedly,
there was a previous partition effected amicably between the sons of
late Lochan Sethi during the life of late Lochan Sethi and the sons took
over possession of their respective shares of property accordingly.
Present suit property when claimed by the Plaintiff to have fallen under
his share and accordingly the Hal RoR was corrected in his name, the
Defendant disputes the same claiming that it fell into the share of her
husband and accordingly she was in possession of the same running
tuition center there. But according to the claim of Plaintiff, the
Petitioner took the suit premises on rental basis from the Plaintiff to
run tuition center and now denying to vacate the same.
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 28-Nov-2025 10:49:19
5. It is true that the Hal RoR with regard to suit premises, i.e. Plot
No.60 measuring area Ac.0.06 decimals has been recorded in the name
of the Plaintiff and the RoR is relied on by the Plaintiff in his support.
The suit is presently at the stage of evidence continuing from the side
of the Defendant where the Defendant has examined some of her
witnesses. At this stage, the Defendant filed a petition under Order 26
Rule 9, C.P.C. with a prayer to ascertain the exact location of the suit
property and other landed properties allotted in favour of other sons of
Late Lochan Sethi with reference to their previous partition.
6. It is true that the previous partition between the sons of Late
Lochan Sethi is not disputed. It is also admitted that present suit
premises has been recorded in the hal RoR in the name of the Plaintiff.
So by way of deputing civil court commissioner, the Defendant want to
re-open the previous partition to the extent that in whose share which
property fell.
7. The settled principles as per Order 26 Rule 9 C.P.C. are that the
Court has the discretionary power to appoint civil court commissioner
in order to elucidate the matter in dispute or for such other purpose,
particularly to get such information peculiar in the facts of the case to
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 28-Nov-2025 10:49:19
be only available at the spot. In Santosh Kumar Parida vs. Narayan
Chandra Dash and others, 2020 (II) ILR-CUT-629, this Court has
observed as follows:-
"5.1. Thus, it is apparent that in a suit, the Court may issue a
commission to any person for the purpose of 'elucidating any
matter in dispute' and for all other purposes mentioned in the
provision itself. According to Oxford dictionary, the word
'elucidate' means 'to throw light or to make clear, to explain,
to remove obscurity from and render intelligible or to
illustrate'. According to Cambridge dictionary, it means 'to
explain something or make something clear'. According to
Chambers dictionary, it means 'to make lucid or clear or to
throw light upon, to illustrate, making clear, explanatory'.
Thus, from the reading of the provision it is manifest that if a
matter in dispute in a suit needs any clarification or further
explanation, the Court may consider issuance of a
commission for that purpose. The language employed in the
provision makes it abundantly clear that the Court exercises
its judicial discretion while making order for issuance of a
commission. But, it must be kept in mind that all matters in
dispute in a suit cannot be elucidated through issuance of a
commission. Thus, the party seeking issuance of a
Commission must establish a prima facie case to invoke the
provision. He cannot use the Court to collect evidence on his
behalf in the guise of invoking the power of the court under
the provision, unless the occasion so arises. Thus, the party to
the suit seeking issuance of a commission must, at the first
instance, make an endeavor to lead evidence to prove his case
on the issue involved. Only when the evidence or material on
record is insufficient or needs clarification or the parties are
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 28-Nov-2025 10:49:19
unable to lead evidence on any particular matter in dispute or
it becomes expedient to make a local investigation by a
Commission to lead further evidence in the matter, to pass an
effective decree, then the Court has the power to exercise its
discretion under the provision and issue such a commission
for any purpose mentioned in the provision itself."
8. In the case at hand, the Defendant seeks appointment of civil
court commissioner in a suit for eviction in order to ascertain not only
location of the suit land, but other such properties allotted in favour of
other brothers of the parties also in reference to the previous partition
took place among them. Therefore, the purpose intended by Defendant
to be solved by the Commissioner is that to get details of location of
such properties allotted to each brother in course of the previous
partition. It needs to be mentioned here that the entire joint family
property has not been described in the suit and all such sons of Late
Lochan Sethi have not been made parties to the suit. Therefore, it
would be a herculean exercise on the part of the commissioner to
ascertain the exact location of such properties fall to the share of each
son of Late Lochan Sethi in terms of the previous partition which is
practically impossible at this stage. When the suit is for specific
purpose for eviction of the Defendant in respect of a particular piece of
land as per the suit schedule, it is not necessary to ascertain the location
Signed by: BASANTA KUMAR BARIK
Location: High Court of Orissa, Cuttack
Date: 28-Nov-2025 10:49:19
of each such plots fell to the share of each such co-sharers to get the
result in favour of the Defendant. When the previous partition is
admitted, it is upto the parties to establish their claim by adducing
evidence to that effect for which appointment of civil court
commissioner is not necessary to visit the spot particularly when the
prayer is for eviction in respect of the land recorded in the name of a
particular party.
9. In the circumstances, the order of the learned trial court to refuse
the prayer of the Defendant to depute the civil court commissioner for
the purposes prayed by the Defendant is thus justified and the learned
trial court has rightly rejected the payer of the Defendant in this regard.
The impugned order is thus confirmed and the C.M.P. is dismissed.
(B.P. Routray)
Judge
B.K. Barik/Secretary
