Orissa High Court

*** vs Plant Manager on 31 October, 2025

                 ORISSA HIGH COURT : CUTTACK

                     CMP No.473 of 2016

An application under Article 227 of the Constitution of India.

                             ***

Dhamali Patel

... Petitioner.

-VERSUS-

Plant Manager, LPG Bottling Plant, Jharsuguda & Another

... Opposite Parties.

Counsel appeared for the parties:

For the Petitioner : Mr. Biraja Prasanna Das, Advocate For the Opposite Parties : None (for Opp. Party No.1) Mr. S.S. Tripathy, Advocate Appearing on behalf of Mr. S. Rath, Adv.

(For the Opp. Party No.2)

P R E S E N T:

HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA

Date of Hearing : 17.10.2025 :: Date of Judgment : 31.10.2025

J UDGMENT

ANANDA CHANDRA BEHERA, J.--

1. This Civil Misc. Petition under Article 227 of the

Constitution of India has been filed by the petitioner (plaintiff

in the suit vide C.S. No.48 of 2012) against the Opp. Parties

(defendants in the suit vide C.S. No.48 of 2012) praying for

setting aside the impugned order dated 10.03.2016 passed in

C.S. No.48 of 2012 by the learned Civil Judge (Jr. Division),

Jharsuguda.

2. The factual backgrounds of this CMP under Article 227

of the Constitution of India, 1950, which prompted the

petitioner for filing of the same is that, the petitioner being the

plaintiff filed the suit vide C.S. No.48 of 2012 against the Opp.

Parties arraying them (Opp. Parties) as defendants praying for

declaration of his Right of easement of way/passage/path over

the suit land stating in his plaint that, the suit passage is the

only way/passage/path for coming to the main road i.e. to the

Sundergarh-Jharsuguda road from his house. In the said

suit, he (plaintiff) filed a petition on dated 02.02.2016 under

Order 26 Rule 9 of the CPC, 1908 praying for deputation of a

survey knowing Civil Court Amin Commissioner in order to

visit the suit land and to submit a report in respect of the

nature and existing physical features of the suit land, to

which, the defendant No.2 objected through written objection

on the ground that, the nature and physical features of the

suit land can be ascertained very well from the village map i.e.

the survey map maintained and updated in the office of

Tahasildar, Jharsuguda as well as in the office of the Revenue

Inspector of the local Revenue Circle, for which, deputation of

a survey knowing Civil Court Commissioner under Order 26,

Rule 9 of the CPC is not required under law. That too, before

starting of evidence in the suit vide C.S. No.48 of 2012, the

question of deputation of any survey knowing Civil Court

Amin Commissioner for spot verification in respect of the

nature and physical features of the suit does not arise.

Therefore, the petition dated 02.02.2016 under Order 26, Rule

9 of the CPC, 1908 of the plaintiff (petitioner) is liable to be

rejected.

After hearing from both the sides, the learned Civil Judge

(Jr. Division), Jharsuguda rejected to the said petition dated

02.02.2016 under Order 26, Rule 9 of the CPC of the plaintiff

(petitioner) on dated 10.03.2016 assigning the reasons that,

"In the present suit, except pleadings, no other material is available or supplied by the plaintiff by way of evidence to wipe out the matter in dispute for proper adjudication of the suit, i.e. whether the commissioner is required to be issued for local investigation or not.

For which, I do not find any reasonable ground to allow the petition filed by the petitioner-plaintiff under Order 26 Rule 9 of the CPC. Hence, the petition dated 02.02.2016 under Order 26, Rule 9 of the CPC, 1908 filed by the plaintiff stands rejected."

3. On being dissatisfied with the above impugned order of

rejection to the petition dated 02.02.2016 under Order 26

Rule 9 of the CPC of the plaintiff on dated 10.03.2016 passed

by the learned Civil Judge (Jr. Division), Jharsuguda in C.S.

No.48 of 2012, the plaintiff challenged the same by filing this

CMP under Article 227 of the Constitution of India, 1950

praying for setting aside the same taking several grounds in

his petition.

4. I have already heard from the learned counsel for the

petitioner (plaintiff) and the learned counsel for the Opp. Party

No.2 (defendant No.2), as none appeared from the side of the

Opp. Party No.1 (defendant No.1) for participating in the

hearing of this CMP.

5. The petition dated 02.02.2016 under Order 26, Rule 9 of

the CPC, 1908 of the plaintiff (petitioner) has been rejected by

the learned Trial Court assigning the reasons i.e. non-

availability of other materials than the pleadings to wipe out

the matters in dispute between the parties.

6. The petition under Order 26 Rule 9 of the CPC, 1908 was

filed by the petitioner (plaintiff) praying for deputation of a

Survey Knowing Amin Commissioner to investigate the suit

land and to submit a report relating to the nature and existing

physical features of the suit land, as the suit is for declaration

of his right of easement of way/passage/path over the suit

land on the ground that, the suit land is the only

way/passage/path from his house to reach Sundargarh-

Jharsuguda main road, to which, the learned Trial Court

rejected assigning the above reason.

7. When the suit of the petitioner (plaintiff) is for

declaration of his right of easement of way/passage/path on

the suit land and when he (plaintiff) filed petition on dated

02.02.2016 praying for deputation of a Survey Knowing Amin

Commissioner to investigate the spot and to submit a report

about the existing nature and physical features of the suit

land, then, at this juncture, the learned Trial Court should

not have rejected to the said petition dated 02.02.2016 under

Order 26, Rule 9 of the CPC, 1908 through the impugned

order dated 10.03.2016. Because, there is no bar or

prohibition under law for deputation of a Survey Knowing

Amin Commissioner in a suit before starting of the evidence

and in this nature of suit, a report of the Survey Knowing

Amin Commissioner shall never cause any prejudice to any of

the parties to the suit, rather the said report of the

Commissioner can assist the Court for just and proper

decision of the suit.

The conclusion drawn above, finds support from the

ratio of the following decisions:

I. In a case between Mundladinne Gopal Reddy Vs. P. Ramachandra Reddy reported in 2016(4) Civil Court Cases 599 (Hyderabad) that, Commissioner under Order 26 Rule 9 of the CPC, 1908 can be appointed before issues are framed or evidence is led. II. In a case between Korada Murali Vs. Srinivas Sahu & Another reported in Law Mirror.Com File

Number 72913 that, a Commissioner under Order 26, Rule 9 of the CPC can be appointed for a limited purpose of noting down physical features of the plaint schedule property, which will cause no prejudice to the parties.

III. In a case between Ram Ujagar & Another Vs. Smt. Kailasha & Others reported in 2011 (3) Civ.C.C. 28 (Allh.) that, the object of appointment of Commissioner under Order 26 Rule 9 of the CPC is not to collect evidence, but to obtain evidence with regard to peculiar nature, which can only be had at the spot.

IV. In a case between Smt. Asha Devi & Others Vs. Bhollu Ram & Another reported in 2012 (2) Civil Court Cases 361 (P&H) that, the object of the appointment of a commissioner under Order 26, Rule 9 of the CPC is to obtain evidence from spot itself, which helps the Court to properly and effectively evaluate evidence on record. Report is a piece of evidence and its weight has to be seen by Court along with other evidence on record.

8. When, for the reasons assigned above, it is held that, the

learned Civil Judge (Jr. Division), Jharsuguda should not have

rejected to the petition dated 02.02.2016 under Order 26,

Rule 9 of the CPC of the plaintiff for deputation of a Survey

Knowing Amin Commissioner, but should have allowed the

same, as the report of the Survey Knowing Amin

Commissioner in the nature of the suit vide C.S. No.48 of

2012 filed by the plaintiff shall not cause prejudice to any of

the parties to the suit, rather, the same can assist the Court

for just and proper decision of the suit, then, at this juncture,

by applying the principles of law enunciated in the ratio of the

above decisions, I find no justification to disallow this Civil

Misc. Petition filed by the plaintiff (petitioner).