JUDGMENT :

A.K. Rath, J.

This petition challenges the order dated 2.9.2016 passed by the learned Addl. Civil Judge (Junior Division), Narasinghpur in I.A No.06 of 2016 arising out of C.S. No.20 of 2016 whereby the learned trial court rejected the application of the plaintiff under Order 26 Rule 9 CPC holding, inter alia, that the appointment of commission can only be considered after closure of evidence.

2. The petitioner as plaintiff instituted C.S. No.20 of 2016 in the court of the learned Addl. Civil Judge (Junior Division), Narasinghpur for permanent injunction impleading the opposite parties as defendants. The case of the plaintiff is that she is the owner of an area of Ac.0.125 dec. appertaining to Khata No.574/376, Plot No.1865/2948 of Mouza-Paikapadapatna in the district of Cuttack. The defendant no.1 is the adjacent owner of the suit land towards the northern side. The suit land is bounded by pillars. Taking advantage of the absence of the plaintiff, defendant no.1 removed the boundary pillars and stacked the materials to build a house. The plaintiff applied for demarcation of the suit land in Misc. Case No.12 of 2016 before the Tahasildar, Narasinghpur. The defendant no.1 did not allow the amin to measure the land. Defendant no.1 continued the construction work forcibly and unauthorisedly encroaching upon the suit land.

3. Pursuant to issuance of summons, defendants entered appearance and filed a written statement denying the assertions made in the plaint. The specific case of the defendants is that they have not encroached upon any portion of the suit land. While the matter stood thus, the plaintiff filed an application under Order 26 Rule 9 CPC to depute an amin commissioner for identification and demarcation of the suit land. It is stated that she made an application to the Tahasildar, Narasinghpur to depute an amin to demarcate the suit land. The defendants did not cooperate for which the amin was unable to identify the land. The defendants filed an objection to the same. Learned trial court came to hold that no evidence has been adduced by the parties. Appointment of commission can be considered after closure of evidence, when the court finds it difficult to pass effective decree on the existing evidence. Held so, learned trial court rejected the application.

4. Heard Mr. Mantry, learned counsel for the petitioner and Mr. Pradhan, learned counsel for the opposite parties.

5. Mr. Mantry, learned counsel for the petitioner, argued with vehemence that the learned trial court fell into patent error in holding that the commissioner can be appointed after closure of evidence. He submitted that the commissioner can be appointed at any stage of the suit. Since the dispute pertains to identification of the land, learned trial court has committed manifest illegality in rejecting the application.

6. Per contra, Mr. Pradhan, learned counsel for the opposite parties, submitted that since the learned trial court has observed that the commissioner can be appointed after closure of evidence, the order requires no interference.

7. Order 26 Rule 9 provides as follows;

“9. Commissions to make local investigations.-In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court.”

8. On an interpretation of the said Rule, in Bhabesh Kumar Das v. Mohan Das Agrawal, 2015 (II) CLR 603, this Court held as under:

“In the case of Prasanta Kumar Jena vs. Choudhury Purna Ch. Das Adhikari, 99 (2005) CLT 720, the learned Single Judge of this Court held that an application under Order 26 Rule 9 C.P.C. can be considered only after closure of the evidence when the court finds difficult to pass an effective decree on the exis