Dr. Subas Chandra Rath vs Dr. Srinandan Mohanty

P.K. Tripathy, J.—Heard.

This writ petition stands disposed of at the stage of admission.

Learned counsel for the petitioner states that petitioner is the defendant and the opposite party is the plaintiff in Civil Suit No. 682 of 2002, pending in the Court of Civil Judge (Senior Division), Bhubaneswar. Plaintiff filed Interim Application No. 582 of 2002 under Order 39, Rules 1 and 2 C.P.C. Learned Civil Judge refused to grant temporary injunction. Against that order, plaintiff filed F.A.O. No. 3 of 2003. When the appeal was pending in the Court of Additional District Judge, Fast Track Court No. IV, Bhubaneswar, plaintiff filed Interim Application No. 16 of 2003 for temporary injunction. The appellate Court passed order directing the petitioner not to make any construction on any portion of plot No. 167 till disposal of the appeal. Shortly after that order, plaintiff filed Interim Application No. 24 of 2003, in the appellate Court. That application was filed under Order 39, Rule 2-A, C.P.C. alleging about undertaking construction in spite of the aforesaid order of temporary injunction. Plaintiff filed an application under Order 39, Rule 7, C.P.C. to depute a Pleader Commissioner to make local inspection and to report about, alleged construction by the petitioner. That prayer was rejected by the appellate Court on 10.9.2003 but on 29.9.2003, the appellate Court passed the impugned order directing for deputation of a survey knowing Civil Court Commissioner to make investigation and to submit a report. Petitioner states that he is aggrieved by the order passed on 29.9.2003.

Learned counsel for the petitioner argues that in this case the Court below has acted beyond jurisdiction by considering the application under Order 39, Rule 7 C.P.C. as an application under Order 26, Rule 9 C.P.C. He also argues that it is the duty of the plaintiff to produce his evidence in support of the allegation and by the impugned order the Court cannot assist the plaintiff to collect evidence. He also argues that in the plaint when the plaintiff has admitted about construction on the disputed area having already been done by the defendant-petitioner, therefore, there is no necessity to depute a survey knowing Commissioner to make an investigation if any construction has been made. Accordingly, he prays to set aside the impugned order. In support of his contention, he refers to and relies on the cases of Subal Kumar Dey Vs. Purna Chandra Giri and Others, K. Raghunath Rao v. Smt. Tumula Jailaxmi 64 (1987) C.L.T. 304, and Indramani Behera v. Ghanashyam Behera 62 (1986) C.L.T. 398.

It appear from the order dated 10.9.2003 of the appellate Court that application for deputing a pleader Commissioner was rejected on the ground that -"in case of pleader Commissioner is deputed then he can only see whether a new wall was constructed or not but cannot ascertain whether it is constructed on the suit land or land of the opp. party because the land of the Opp. Party is adjoining to the suit land. In such circumstance, deputation of pleader Commissioner will not serve any purpose rather a Survey knowing Commissioner required to be deputed to see whether there is any new construction and if so whether it is on the suit land".

So far as the impugned order is concerned, it is noted at the out-set that "the plaintiff-petitioner files a petition for deputing a Survey knowing Commissioner to visit the spot and to report as to whether any new compound wall has been constructed on Plot No. 167 adjoining to the east side of the earlier compound wall." An objection was taken by the petitioner to that prayer on the ground that application for deputation of a survey knowing Commissioner can be made only under Order 26, Rule 9 C.P.C. The Court below considering the contention of both the parties treated the application under Order 39, Rule 7 C.P.C. and considering the nature of the dispute allowed the prayer for deputing a survey knowing Commissioner to make an investigation and to submit a report.

It is, thus, clear from the impugned order that the Court below has not passed any order under Order 26, Rule 9, C.P.C. but he has passed the order under 39, Rule 7 C.P.C.

In the case of Subal Kumar Dey (supra) in a similar context, this Court held that an order can be passed by deputing the survey knowing Commissioner under Order 39, Rule 7, C.P.C. and not under-Order 26, Rule 9, C.P.C. and such power should be exercised when occasion demands and when inspection is necessary for proper appreciation and adjudication of the dispute.

In the case of K. Raghunath Rao (supra), the trial Court at the commencement of hearing of the suit passed order under Order 26, Rule 9, C.P.C. at the instance of the plaintiff.In that context, this Court held that parties cannot be assisted by the Court for collection of evidence and resort to deputation of a survey knowing Commissioner be made in appropriate cases only. In the case of Indramani Behera (supra), acceptance of the report of the survey knowing Commissioner was challenged before this Court, While considering the facts and circumstances involved in that case, this Court held that Commissioner should not have been deputed when the parties themselves could get the land measured and to adduce appropriate evidence. It, thus, appears that the aforesaid two citations are of no relevance to the facts and circumstances of the present case.

The dispute involved in his case, as it appears from the contention raised in the writ petition and the impugned order, is that whether the defendant has violated the order of injunction by making any further construction. Since the disputed land is adjoining to the land of the defendant, as per the allegation in the plaint, therefore, at this juncture, it may not be convenient for the plaintiff to get the land measured by a private Amin, so as to measure the total constructed area without resistance from the defendants. Apart from that the job of the survey knowing Commissioner is to find out where the alleged construction has been made and the total extent of such construction. Thereafter, it is the duty of the plaintiff to prove as to what was the extent of construction which had been made by the date of order of temporary injunction and what construction has been made by the defendant in violation of the order of injunction in as much as the survey knowing Commissioner cannot make an enquiry regarding the dates of construction and that is also beyond the purview of his inspection.

It is, thus, seen that the approach of the Court below is neither illegal nor unjust, or arbitrary when he has passed an order for deputing the survey knowing Commissioner. But he shall be careful while accepting such report about the extent of its evidentiary value and to consider the same appropriately and in accordance with law.

As noted above, since the impugned order does not suffer from illegality or jurisdictional error, therefore, this Court is not inclined to admit the writ petition and the same is dismissed accordingly.