Orissa High Court
Narendra Biswal vs The Falcon Marine Export Limited ... ... on 9 September, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Designation: Personal Assistant
Reason: Authentication
Location: OHC, Cuttack
Date: 10-Sep-2025 18:18:13
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.928 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Narendra Biswal .... Petitioner
-versus-
The Falcon Marine Export Limited ... Opposite Party
Advocate(s) appeared in this case:-
For Petitioner : Mr. D.P. Mohanty, Advocate
For Opp. Party : Mr. D.P. Mohapatra, Advocate
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
9 September, 2025
B.P. Routray, J.
1. Heard Mr. D.P. Mohanty, learned counsel for the Petitioner and
Mr. D.P. Mohapatra (Balasore), learned counsel for Opposite Party.
2. Present CMP is directed against impugned order dated 16th
April, 2025 passed in I.A. No.57/80 of 2025 (arising out of C.S.
No.107/308 of 2025), wherein the learned trial court has directed for
appointment of Commissioner under Order 39, Rule 7 of the C.P.C.
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3. Present Petitioner who is the Plaintiff has filed the suit praying
for declaration of the sale deeds as illegal, fraudulent and void and for
recovery of possession along with consequential reliefs. I.A. No.57/80
of 2025 was filed under Order 39, Rule 1 and 2 praying for temporary
injunction against Defendant No.1. An order of status quo as passed
by the trial court in the I.A. is operating over the suit schedule land
pending final hearing of the I.A. In the meantime, Defendant No.1
filed a petition in the I.A. under Order 39 Rule 7 praying for
appointment of pleader commissioner for inspection of the suit
property with the questionnaire stated below:-
"As per the identification of the parties Commissioner
will inspect the suit land (I.A. schedule land) and will
report as to the nature and character of the suit land,
manner of use and possession of the suit land, its length,
breadth and location."
4. Learned trial court vide impugned order dated 16th April, 2025
allowed the prayer of Defendant No.1 for appointment of
Commissioner for inspection on the questionnaire presented by
Defendant No.1 and the same is the subject matter of challenge in
present CMP.
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5. The provisions contained in Order 39, Rule 7 empowers the
court for detention, preservation or inspection of the suit property by
authorizing any person in this regard to enter upon the land or building
in question to get answer of such question that may arise in the subject
matter of the suit.
As stated above, the Plaintiff's application for temporary
injunction under Order 39, Rule 1 and 2 is still pending and pending
such application an interim order of status quo is operating in respect
of the suit land. The power of the court to inspect the suit property is
not restricted by any limitations if the occasion demands that such
inspection is necessary for the purpose and for proper appreciation of
the issues in dispute [Abdul Naim Khan and Another v. Sk.
Kefaittullah and Others, 2013 (Supp.-I) OLR 253]. But at the same
time the court must be aware that the order of inspection of suit
property should not be directed for collecting evidence in favour of
any party [Bijay Kumar Jena and Another v. Dussasan @ Surendra
Khuntia and Others, 62 (1986) CLT 201].
6. In the case at hand, there is an interim order of status quo
operating in respect of the suit land as submitted by both parties. It is
not that any of the party is alleging violation of said interim order of
Designation: Personal Assistant
status quo by the other party. When none of the party is alleging
violation of the interim order of status quo then the necessity arose for
the court to inspect the property must be satisfactory. It is not that
because the I.A. is pending and one of the party is praying for
inspection of the suit land to know the manner of its use and
possession thereof. What is submitted by Mr. Mohapatra, learned
counsel for the Opposite Party that since the Plaintiff has stated
against the Defendant regarding making of construction by him over
the suit land and with regard to construction of boundary wall also,
therefore the court must know the status of the land before deciding
the application for temporary injunction. Such submission made on
behalf of the Opposite Party is not found convincing for the reason
that admittedly none of the party is alleging violation of the interim
order of status quo which is still operating in respect of the suit land as
on date.
7. So far as the nature of the questionnaire and its purpose, as may
be looked into from the petition under Annexure-4, the commissioner
is required to report as to the nature and character of the suit land and
manner of its use including possession thereof and other details. This
would simply mean to collect evidence with regard to possession of
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the parties over the suit land. So far as the nature and character of the
suit land is concerned, there does not appear any dispute with regard
to the same, which can be taken care of by the learned trial court at
appropriate time.
8. Thus, on the given facts of the present case the direction of the
trial court to appoint the Commissioner at this stage is not found
justified and as such the impugned order dated 16th April, 2025 under
Annexure-6 is set aside.
9. In the result the CMP is allowed and the impugned order is set
aside as stated above. However, it is left open for the trial court to
appoint any such commission in terms of the power under Order 39
Rule 7 at appropriate time, if necessary.
( B.P. Routray)
Judge
M.K. Panda/P.A
