The power of the Court to appoint a Survey Knowing Commissioner cannot be restricted by the absence of a prescribed stage for appointment in the legislation.

JUDGMENT :

A.K. Rath, J.

1. This petition challenges the order dated 16.04.2018, passed by the learned Civil Judge (Junior Division), Bhubaneswar, in C.S. No. 263 of 2010, whereby and whereunder, the trial court allowed the application of the plaintiff under Order-26 Rule-9 CPC for appointment of a Survey Knowing Commissioner.

2. Since the dispute lies in a very narrow compass, facts need not be recounted in details. Suffice it to say that plaintiff-opposite party no. 1 instituted the suit for permanent injunction impleading the petitioner and opposite party no. 2 as defendants. The defendant entered appearance and filed written statement denying the assertion made in the plaint. While matter stood thus, the plaintiff filed an application under Order-26 Rule-9 CPC for appointment of a Survey Knowing Commissioner. It was stated that the order of status quo was passed in I.A. No. 320 of 2010. The defendants have encroached upon a portion of the suit land. The defendant objected the petition. The trial court allowed the same.

3. Mr. Pradipta Kumar Mohanty, learned Senior Counsel for the petitioner submits that hearing of the case has not yet began. The defendants have not encroached upon any portion of the plaintiff's land. After the evidence is closed, if it is not possible on the part of the trial court to come to a definite conclusion on the available material on record, then it may appoint a Survey Knowing Commissioner.

4. In Bhabesh Kumar Das vs. Mohan Das Agrawal, (2015) 2 CurLR 603, this Court held:

"In the case of Prasanta Kumar Jena vs. Choudhury Purna Ch. Das Adhikari, (2005) 99 CutLT 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 existing evidence. Relying on the said decision, learned Single Judge of this Court set aside the order of appointment of Survey Knowing Commissioner for measurement and demarcation of the land passed by the learned trial court. The same was challenged before this Court in the case of Ram Prasad Mishra vs. Dinabandhu Patri and Another. The Bench speaking through Mr. V. Gopala Gowda, C.J. (as he then was) held that the learned Single Judge has interfered with the order passed by the learned trial court in appointing the Survey Knowing Commissioner ignoring the decision of this Court in the case of Mahendranath Parida vs. Purnananda Pardia and Others, (1988) AIR Orissa 248. Thus, the decision in the case of Prasanta Kumar Jena (supra) has been impliedly overruled by the Division Bench of this Court.

In Mahendranath Parida (supra), this Court held that when the controversy is as to identification, 5 location or measurement of the land or premise or object, local investigation should be done at an early stage so that the parties can be aware of the report of the Commissioner and can go to trial prepared.

In Ramakant Naik and Others vs. Bhanja Dalabehera, (2015) AIR Orissa 1724, this Court held that issuance of a Commission for local investigation is the discretion of the Court. While considering the prayer for appointment of Commission, the Court must apply its mind to the facts and circumstances of the case and pass order. No straight jacket formula can be laid down. Before issuance of Commission, the Court must be satisfied that there is prima facie case in favour of the applicant. On a reading of Order 26 Rule 9 C.P.C. it is manifest that the stage of appointment of Survey Knowing Commissioner has not been prescribed. When the legislature in its wisdom has not prescribed the stage of appointment of Survey Knowing Commissioner, the power of the Court to appoint the Survey Knowing Commissioner cannot be cabined, cribbed or confined."

5. The ratio in Bhabesh Kumar Das (supra), proprio vigour applies to the facts of the case.

6. The report of the Survey Knowing Commissioner forms a part of the record. Person aggrieved by the same may file ob