ORDER

15.12.2003 — Heard.

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

3. Learned counsel for the petitioner states that peti¬tioner 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 appel¬late 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 Appli¬cation No. 24 of 2003, in the appellate Court. That application was filed under Order 39, Rule 2-A, C.P.C. alleging about under¬taking 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 inspec¬tion 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 Commis¬sioner to make investigation and to submit a report. Petitioner states that he is aggrieved by the order passed on 29.9.2003.

4. 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 alle¬gation 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 disput¬ed 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 v. Purna Chandra Giri and others, A.I.R. 1989 Orissa, 214, K. Raghunath Rao v. Smt. Tumula Jailax¬mi, Vol. 64, (1987) C.L.T. 304, and Indramani Behera v. Ghanash¬yam Behera, 62 (1986) C.L.T. 398.

5. It appear from the order dated 10.9.2003 of the appel¬late 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 construct¬ed 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, depu¬tation 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”.

6. 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 construct¬ed 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 deputi