The main legal point established is that the application under Order 26, Rule 9, CPC is applicable only when there is a dispute regarding the identification or location of the disputed property, and the purpose of the Act is to elucidate any matter in dispute.

JUDGMENT :

Biswanath Rath, J.

This Civil Miscellaneous petition is filed under Article 227 of the Constitution of India assailing the order dated 12.01.2016 passed by the Civil Judge (Senior Division), Bhubaneswar in Civil Suit No.1131 of 2011 thereby rejecting an application under Order 26, Rule 9 of the Civil Procedure Code at the instance of the petitioners (plaintiff Nos.1 to 3 in the court below).

2. Short facts involved in the case is that plaintiff Nos.1 to 3 filed Civil Suit No.1131 of 2011 praying therein to declare the registered sale deed No.5396 dated 27.12.1993 as void, illegal, inoperative, fabricated one and not binding to the plaintiffs, further for a declaration that the defendant has not derived any right, title, interest by virtue of forged registered sale deed No.5396 dated 27.12.1993 in respect of suit ‘A’ schedule land, further to declare the possession of the plaintiffs confirm and in the event if it is found that during course of the suit, the plaintiffs are dispossessed from the suit land, the possession of the same be delivered to them through process of the court and also for permanent injunction against the defendant or anybody claiming under him restraining them/him from interfering in the possession of the plaintiffs in respect of suit ‘A” schedule land.

3. During pendency of the suit, plaintiffs filed a petition under Order 26, Rule 9 of the Civil Procedure Code on 22.12.2015 praying therein to pass an appropriate order for deputing a survey knowing Commissioner for identification of the suit Schedule-A land out of the Settlement Plot No.402. In filing the aforesaid petition, the plaintiffs contended before the trial court that for proper adjudication of the suit and in the interest of justice, a survey knowing Commissioner is required to be deputed for identification of the suit schedule-A land so also for ascertainment of fact of construction of house over the alleged purchased land. In filing objection, the contesting defendant challenged the petition submitting that as the plaintiffs are the master of their own suit, they must have an idea about the identification of the suit schedule land and they are required to prove their case basing on the pleadings made in their plaint. Further there is no such necessity here for the reason that there is already a report of the Pleader Commissioner following an order involving an application under Order 39, Rule 7, CPC at the intervention of this Court. The defendant also contended that by filing such application, there is a clear attempt by the plaintiffs to linger the disposal of the suit inspite of the fact that there is already a direction by this Court in disposal of C.M.P.No.1212 of 2015 where an order was passed targeting the disposal of the suit.

Considering the rival contentions of the parties, the trial court while disposing the application under Order 26, Rule 9, CPC at the instance of the plaintiffs, rejected the application on the grounds assigned in the order impugned herein.

4. In assailing the impugned order, Mr.B.Pattnaik, learned counsel appearing for the petitioners apart from reiterating the grounds already taken in the application under Order 26, Rule 9,CPC, further submitted that it is the settled proposition of law to issue a writ normally directing the Commissioner for local investigation to appreciate the evidence already on record .But there may be a departure from the said rule as held by this Court in the case between Debendranath Nandi –vrs-Natha Bhuiyan, reported in 39 (1973) C.L.T. -180, between Mahendranath Parida –vrs-Purnananda Parida & Oothers, reported in 64 (1987) C.L.T.-722 and between Krushna Behera and another -vrs-Gitarani Nandy, reported in 1990(1) OLR-247. Mr. Pattnaik, learned counsel further contended that as per the settled proposition of law, the court has discretion to depute a survey knowing Commissioner depending on the facts of the case and pleadings of the parties and here is a fit case where the court ought