The central legal point established in the judgment is the court's discretion in appointing a survey knowing civil court commissioner and the absence of a prescribed stage for such appointment.

JUDGMENT :

Dr. Akshaya Kumar Rath, J.

1. Aggrieved by and dissatisfied with the order dated 2.8.2008 passed by the learned Civil Judge (Jr. Divn), 1st Court, Cuttack in C.S. No. 213 of 2003, the instant petition is filed under Article 227 of the Constitution of India. By the said order, learned trial court rejected the application of the plaintiff filed under Order 26 Rule 9 C.P.C. to depute a survey knowing civil court commissioner. The petitioner as plaintiff filed a suit for perpetual injunction restraining the defendant-opposite parties from interfering with the peaceful possession of the suit land or making any construction over the same in the court of the learned Civil Judge (Jr. Divn.), 1st Court, Cuttack, which is registered as C.S. No. 213 of 2003. Pursuant to issuance of summons, the defendants entered appearance and filed their written statement denying the assertions made in the plaint. While the matter stood thus, an application was filed by the plaintiff under Order 26 Rule 9 C.P.C., for deputing a civil court commissioner to resolve the dispute. Learned trial court allowed the same and accordingly deputed a survey knowing civil court commissioner to measure the land and submit a report. The commissioner submitted the report on 12.3.2008. The plaintiff filed objection to the same. By order dated 15.7.2008, learned trial court rejected the report of the commissioner. Thereafter, the plaintiff filed an application on 21.7.2008 for deputing afresh survey knowing civil court commissioner Vide Annexure-3. The defendants filed objection to the, same, vide Annexure-4. By order dated 2.8.2008, learned trial court rejected the petition vide Annexure-5. The operative part of the impugned order, is quoted hereunder:

"xxx xxx xxx

........... Then in such circumstances, after closer of evidence from both the sides and without considering the actual factum of dispute among the parties in the suit regarding the actual existence of the suit boundary wall at the spot on consideration the evidence, already adduced on record, a party like the plaintiff be assisted by this court to collect any evidence in it's favour by allowing the present petitioner and therefore in consideration of all Such discussed facts, this court is of the humble view that at this stage the present petition filed by the plaintiff merits no consideration, when the suit posted for hearing argument from both the sides and therefore the same is liable to be rejected at this stage with further observation that, if the court would arrive at a conclusion that neither parties has been able to produce evidence to that effect, then the same can be considered thereof by the court only.

XXX XXX XXX.

2. Heard learned counsel for the parties.

3. Learned trial court came to hold that when the suit was posted for argument, the petition was filed for deputing a survey knowing civil court commissioner. It was further held that both the parties have adduced evidence in support of their respective claims. The-court should not assist the parties to collect the evidence on its behalf. The, earlier report of the civil court commissioner was ignored. Thus after closure of evidence) and without considering that factum of dispute and existence of boundary will, the court Cannot assist the party to collect evidence.

4. Order 26 Rule 9 C.P.C. is quoted hereunder.

9. Commissions to make local inventions--In any suit in which the, Court deems a local in inventions 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 thin fit directing him to make such investigations and to report thereon to the Court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."

5. In Bhabesh Kumar Das v. Mohan Das Agrawa