[Cites 1, Cited by 0]
Orissa High Court
Sabita Mahapatra vs Raj Kishore Dash Dead ..... Opposite ... on 20 January, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.85 of 2026
Sabita Mahapatra ..... Petitioner
Represented by Adv. -
Mr. Soumya Ranjan Das
-versus-
Raj Kishore Dash Dead ..... Opposite Party
Represented by Adv. -
Mr. Sarbeswar Behera,
AGA
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
20.01.2026
Order No.
01. 1. This matter is taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. Heard the learned counsel for the Petitioner. Perused the
CMP application as well as the prayer made therein.
3. By filing the present CMP application, the Petitioner seeks
to challenge the order dated 28.11.2025 passed by the learned
District Judge, Bargarh in Title Appeal No.43/58 of 2001 thereby
rejecting the application of the Petitioner under Order-26 Rule-9
of C.P.C.
4. Taking into consideration the submission made by the
learned counsel for the Petitioner and on a careful examination of
the order dated 28.01.2025 at Annexure-3, this Court found that an
application under Order-26 Rule-9 of C.P.C. has been filed at the
instance of the Appellant-Petitioner on 01.05.2025.
5. On perusal of the record, it appears that the appeal is of the
year 2001. Although the matter was before this Court in RSA
No.342 of 2009 challenging the judgment and decree dated
05.03.2008 and 18.03.2008 respectively, the above noted second
appeal was disposed of by this Court vide order dated 12.10.2017
thereby remanding the appeal to the lower appellate court. During
the pendency of the appeal, the present application was filed under
Order-26 Rule-9 of the C.P.C.
6. Learned counsel for the Petitioner while supporting the
application under Order-26 Rule-9 of C.P.C., submitted before this
Court that taking into consideration the location of typography of
the suit land., it is difficult to physically verify the same. As such,
the intervention of the court was sought for under Order-26 Rule-9
of the C.P.C. The lower appellate court, after discussing the
background facts of the case, has come to a conclusion that he
does not find any convincing reason to appoint a Survey Knowing
Amin Commissioner to physically verify M.S. Plot No.704 and,
accordingly, the application has been dismissed.
7. On a careful analysis of the impugned order dated
28.11.2025, this Court is of the view that the trial court has not
committed any illegality in rejecting the application of the
Petitioner under Order-26 Rule-9 of the C.P.C. Moreover, the
report to be submitted by the Commissioner under Order-26 Rule-
9 of C.P.C. is not admissible in evidence. Therefore, no prejudice
would be caused to the Petitioner.
8. In view of the aforesaid position, this Court is not inclined to
interfere with the order dated 28.11.2025 passed by the learned
District Judge, Bargarh in Title Appeal No.43/58 of 2001. While
disposing of the present CMP application, this Court observes that
it is open to the lower appellate court to consider for appointment
of any Survey Knowing Amin Commissioner for measuring of the
suit land in the event the court feels the same would be helpful and
assist the court in arriving at the just conclusion of the case.
9. With the aforesaid observation and direction, the CMP
application is disposed of.
(Aditya Kumar Mohapatra)
Judge
Debasis
