[Cites 2, Cited by 0]
Orissa High Court
Mukteswar Panda vs Rajendra Prasad Chaini & .... Opp. ... on 5 February, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1690 of 2025
Mukteswar Panda .... Petitioner
Mr. R.C. Rath, Advocate
-versus-
Rajendra Prasad Chaini & .... Opp. Parties
Another
Mr. B. Das, Advocate
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
Order ORDER
No. 05.02.2026
02. 1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the Petitioner. Perused the
CMP as well as the documents annexed thereto.
3. By filing the present CMP, the plaintiff in C.S. No.290
of 2023 pending in the Court of learned Civil Judge (Senior
Division), Bargarh has approached this Court by filing the
present application under Article 227 of the Constitution of
India thereby challenging the order dated 10.10.2025
passed by the learned trial Court.
4. By virtue of the impugned order dated 10.10.2025 the
learned trial Court rejected the application of the plaintiff
petitioner for deputing a survey knowing Commissioner
under Order 26 Rule 9 of the CPC.
Signed by: AMIT KUMAR MOHANTY
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Feb-2026 15:49:56 Learned counsel for the petitioner at the outset
contended that the petitioner plaintiff has filed the suit for
declaration of right, title and interest and for permanent
injunction. In the suit when the evidence from the side of
the petitioner was being recorded, an application was filed
for deputing a survey knowing commissioner under Order
26 Rule 9 of the CPC. Learned counsel for the petitioner
further contended that deputation of a survey knowing
commissioner is highly essential. However, the learned trial
Court vide order dated 10.10.2025 has rejected the
application of the petitioner plaintiff on the ground that
evidence from both the sides has not yet been closed.
Therefore, deutation of a survey knowing Commissioner
would amount to collecting evidence from the side of the
plaintiff. It was further observed that the dispute in
question could be ascertained once evidence from both the
sides is closed. It is only after closure of the evidence from
both sides, the learned trial Court would arrive at a
conclusion as to whether a Commissioner is required to
deputed or not.
6. Mr. Das learned counsel for the opposite party on the
other hand contended that he has no objection to the
deputation of a survey knowing Commissioner, however, he
has objection to deputation of survey knowing
Commissioner at this stage. Moreover, usually a survey
knowing commissioner is deputed after closure of the
evidence. He further contended that he has no objection if a
direction is given to the learned trial Court for deputation of
a survey knowing Commissioner under Order 26 Rule 9
after closure of the evidence from both the sides.
Signed by: AMIT KUMAR MOHANTY In reply to the submission made by learned counsel
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
for the opposite parties, leaned counsel for the petitioner
Date: 11-Feb-2026 15:49:56
referred to the judgment of this Court in the case of
Bhabesh Kumar Das vrs. Mohan Das Agrwal reported in
2015 (Supp-II) OLR 984.
8. On perusal of the aforesaid judgment, this Court
found that the Single Bench of this Court had earlier on an
application under Order 26 Rule 9 of the CPC held that
there is no particular stage prescribed for appointment of
survey knowing Commissioner under Order 26 Rule 9 of
the CPC. It has also been observed by the learned Single
Judge that when the legislature in its wisdom has not
prescribed the stage of appointment of Survey Knowing
Commission, the power of the Court to appoint the
Survey Knowing Commissioner cannot be cabined,
cribbed or confined. This Court is in full agreement
with the observation made by the Coordinate Bench.
However, it is also a fact that Order 26 Rule 9 confers
the discretionary power on the learned trial Court with
regard to deputation of a survey knowing
Commissioner. In the present case on a careful
examination of the impugned order, this Court found
that the learned trial Court has not committed any
illegality in exercising its discretion under Order 26
Rule 9 of the CPC. Thus this Court is of the view that
the impugned order dated 10.10.2025 does not need
any interference by this Court at this stage.
9. Furthermore, taking into consideration the fact
that both sides are agreeable to the proposal that they
Reason: Authentication have no objection if a survey knowing commissioner is
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Feb-2026 15:49:56
deputed after closure of the evidence from both the
sides, this Court while disposing of the application
directs the learned trial Court to do well to depute a
survey knowing Commissioner after closure of the
evidence from both sides.
10. With the aforesaid observation and direction, the
CMP stands disposed of.
(Aditya Kumar Mohapatra)
Judge
amit
Location: HIGH COURT OF ORISSA, CUTTACK
