[Cites 2, Cited by 0]
Orissa High Court
Hemalata Khamari Sharma vs Ashanidhi Nayak ..... Opposite Party on 25 March, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1095 of 2025
Hemalata Khamari Sharma ..... Petitioners
and others
Represented by Adv. -
Mr. Ashis Kumar Padhee
-versus-
Ashanidhi Nayak ..... Opposite Party
Represented by Adv. -
Mr. Padmanava Jena,
K. Sahoo, H.K. Tripathy,
J.K. Digal, B. Pujari,
K. Naik
CMP No.1096 of 2025
Hemalata Khamari Sharma ..... Petitioners
and others
Represented by Adv. -
Mr. Ashis Kumar Padhee
-versus-
Ashanidhi Nayak ..... Opposite Party
Represented by Adv. -
Mr. Padmanava Jena, K.
Sahoo, H.K. Tripathy,
J.K. Digal, B. Pujari,
K. Naik
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
25.03.2026
Order No.
06. 1. These matters are taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. Heard learned counsel for the Petitioners as well as learned
counsel appearing for the Opposite Party. Perused the CMP
applications as well as the prayer made therein.
3. CMP No. 1095 of 2025 has been filed by the Defendant in
C.S. No.151 of 2011 thereby challenging order dated 06.03.2025
passed by the learned Additional Senior Civil Judge, Bolangir
thereby allowing the application of the Plaintiff-Opposite Party filed
under Order 26 rule 9 of the CPC with a prayer for appointment of
an Amin Commissioner for local investigation and demarcation of
the proof. Similarly, CMP No.1096 of 2025 has been filed by the
Defendant in the very same suit pending before the very same Court
challenging order date 06.03.2025 whereby rejecting the
Defendant's application to accept certain documents which were
introduced by the Defendant during the pendency of the suit along
with such application. Since both the CMP applications arise out of
the very same suit and the Parties are common in both the CMP
applications, with the consent of the learned counsels appearing for
both sides, both the applications were taken up together and the
same have been disposed by the following common order.
4. On perusal of the record it appears that the Opposite Party as
Plaintiff filed the suit for declaration and permanent injunction.
After appearance of the Parties issues were framed and in the suit
the trial is going on. Learned counsel for the Petitioners at the outset
contended that the evidence of the Plaintiff side is closed and that
the Defendants are leading their evidence. He further contended that
at the interim stage an application was filed on behalf of the
Plaintiff-Opposite Party under Order 29 Rule 9 of the CPC for
appointment of an Amin Commissioner for local inspection and
identification of the suit schedule land. Similarly the Defendants
filed an application to introduce three documents while the evidence
on the defendant side was being recorded. The learned trial Court
after hearing learned counsels for both sides allowed the application
filed on behalf of the Plaintiff for appointment of the Amin
Commissioner, and at the same time, rejected the prayer of the
Defendant to introduce certain new documents as the evidence from
defendant side was going on. Being aggrieved by both the matters,
the Defendant in the abovenoted suit has approached this Court by
filing two different CMP applications under Article 227 of the
Constitution of India challenging two different orders passed on
06.03.2025 in two different applications filed in the very suit.
5. While challenging the impugned order dated 06.03.2025 at
Annexure-1 in CMP No.1095 of 2025, learned counsel for the
Petitioners contended that the learned trial Court has erroneously
allowed the application of the Plaintiff filed under Order 26 Rule 9
of the CPC. He further contended that by allowing such application,
the learned trial Court has allowed the Plaintiff to collect evidence
in support of his case. He further submitted that the suit scheduled
property is clearly identified. Therefore, there was no necessity to
appoint any Amin Commissioner either for identification of the suit
scheduled land or any local investigation. On such ground, learned
counsel for the Petitioner assailed the impugned order dated
06.03.2025, at Annexure-1 to the first CMP application.
6. Similarly, learned counsel for the Petitioner assailed the
impugned rejection order dated 06.03.2025 passed in the very same
suit which has been assailed in Annexure-1 to CMP No.1096 of
2025. While assailing the impugned rejection order, learned counsel
for the Petitioner contended that although the facts have been
pleaded by the Defendants and due to non-availability of the
documents at the relevant point of time to same were not filed along
with their written statement. However at the time of recording of
evidence from the Defendant side, the Defendant filed an
application with a prayer to accept three documents which have
been specifically stated. Such application has been taken note of by
the learned trial Court in the impugned rejection order dated
06.03.2025. Further, it was submitted that the introduction of the
documents which are sought to be introduced by the Defendant at
the time of recording of their evidence has not changed the nature
and character of the suit and that the same is not create a new case
from the Defendant side. In course of his argument, learned counsel
appearing for the Petitioner contended that the rules of pleading so
far as it applies to the Defendant is to be construed liberally as has
been held by the Hon'ble Supreme Court as well as by this Court in
several decisions i.e. the rigidity to apply to the pleadings so far as
it relates to the Plaintiff shall not be applicable to the pleadings for
the Defendant side.
7. Learned counsel for the Petitioner further emphatically argued
that the documents which has been introduced by virtue of the
applications filed by the Defendant during the pendency of the suit
have already been pleaded in the written statement. He further
assured this Court that the Defendants would not pray for recall of
any witnesses in the event such documents are accepted and taken
on record from the side of the Defendants. On such ground, learned
counsel for the Petitioner assailed the impugned order dated
06.03.2025 thereby rejecting the Defendant's application for
introduction of certain documents at a belated stage which were
recovered at subsequent stage of the suit.
8. Learned counsel appearing for the Opposite Party on the other
hand contended that the trial Court by virtue of a reasoned and
speaking order dated 06.03.2025 has allowed the Plaintiff's
application under Order 26 Rule 9 of the CPC. He further contended
that so far as the provision of Order 26 Rule 9 of the CPC is
concerned, the same clearly places discretion on the trial Court. It is
the discretion of the learned trial Court to appoint an Amin
Commissioner with regard to conducting a local inspection or for
identification of the suit scheduled land. However, such discretion
has to be exercised judiciously based on the facts of the each suit. In
the present case the learned trial Court has considered in detail the
factual background of the suit and eventually allowed the
application filed by the Plaintiff under Order 26 Rule 9 of CPC.
Learned counsel for the Opposite Party-Plaintiff further contended
that there is no glaring illegality in the impugned order. As such, the
same does not call for any reference by this Court in exercise of its
power under Article 227 of the Constitution of India. In course of
his argument he also referred to the scope and jurisdiction of the
Court in exercise of its powers under Article 227 of the Constitution
of India and it was argued that mere errors by a Court cannot be
corrected in exercise of the power under Article 227 of the
Constitution of India unless this Court come to a conclusion that
there are jurisdictional errors.
9. Similarly, while supporting the rejection order dated
06.03.2025 passed in CMP No.1096 of 2025. Learned counsel for
the Opposite Party-Plaintiff contended that the documents were
sought to be introduced by the Defendants at a belated stage. He
further contended that in the event such documents are allowed to be
introduced, the Plaintiff could be taken by surprise as they would
not get any opportunity to rebut such documents which are sought to
be introduced by the Defendant at a belated stage. On such ground,
learned counsel for the Opposite Party objected to any interference
with the rejection order dated 06.03.2025 which is under challenge
in the 2nd CMP application.
10. Having heard the learned counsels appearing for both sides, on
a careful examination of the background facts involved in the suit.
Further, on a careful analysis of the submissions made by the
learned counsel appearing for both sides, this Court, at the outset,
observes that as against two orders passed by the learned trial Court
in the very same suit, the Defendant has approached this Court by
filing two different CMP applications. Since the factual background
of both the CMP applications are identical and they arise out of a
common suit, both the applications were taken up and heard
together. On a careful consideration of the impugned order dated
06.03.2025 passed in CMP No.1095 of 2025, this Court found that
the learned trial Court after a detailed discussion of the factual
backgrounds of the case has exercised its discretion under Order 26
Rule 9 of the CPC. Moreover, it is up to the learned trial Court to
take assistance of the Amin Commissioner for identification of the
suit scheduled properties. The law is very clear that the report of
Amin Commissioner could not become ipso facto evidence unless
the Amin Commissioner is put to cross-examination by the other
side. In view of the aforesaid position, this Court is not inclined to
interfere with the impugned order dated 06.03.2025 which is the
subject matter of the dispute in CMP No.1095 of 2025.
Accordingly, the CMP No.1095 of 2025 is dismissed.
11. So far the impugned order dated 06.03.2025 in CMP No.1096
of 2025 is concerned, on a careful consideration of the factual
background of the present case, further taking into consideration the
submissions made by the learned counsels appearing for both sides,
this Court found that the Defendants, by filing an application at a
belated stage, intended to introduce certain new documents. Such
introduction of the documents at a belated stage was objected to by
the Plaintiff. On perusal of the impugned order dated 06.03.2025,
this Court found that the learned trial Court has taken note of such
documents which the Defendant wants to introduce, i.e. a notice
dated 14.01.2024 by the Bolangir Municipality, photo copy of the
reply dated 04.02.2004 and 10.03.2004 submitted by the father of
the Defendant to the Executive Officer, Bolangir Municipality.
Learned counsel for the Opposite Party-Plaintiff objected to the
documents on the ground that some of the documents are photo
copies of the letters which are not admissible in evidence. On a
careful consideration of the submission made by the learned counsel
appearing for both sides, taking into consideration the fact that an
order was passed on 06.03.2025 appointing Amin Commissioner,
this Court is inclined to allow the application of the Defendants for
introduction of the documents at a belated stage to the extent that
the original notice dated 14.01.2004 be allowed to be taken into
evidence subject to the other provisions of the CPC. Since the photo
copies are not admissible in evidence, this Court is not inclined to
allow such prayer of the Defendants.
12. With the aforesaid observation and direction, both the CMP
applications are disposed of.
( A.K. Mohapatra)
Judge
Sisir
Designation: PERSONAL ASSISTANT
