JUDGMENT

Biswanath Rath, J. - This is a Civil Miscellaneous Petition involving a challenge to the impugned order dated 8.2.2018 passed by the 4th Additional Civil Judge (Sr.Divn.), Cuttack in C.S. No.271 of 2017(I) on rejection of an application under Order 26 Rule 9 of C.P.C. by the trial court at the instance of the plaintiff, a partnership firm.

2. Plaintiff-Petitioner filed a suit bearing C.S. No.271 of 2017(I) for declaration of the plaintiff as irrevocable licensee to occupy the suit schedule property and also for permanent injunction against the opposite party (defendants in the trial court). Plaintiff put forth a case that in 1993 the plaintiff was in search of space/godown for its business purpose. Late Shyamal Prasad Goenka on coming to know about the requirement of the plaintiff offered the suit land. Accordingly, a deed of agreement was executed between both the parties and thereafter the plaintiff taking possession of the suit land on rent at Rs. 5000/- per month. It was averred therein that the suit property consisted of some dilapidated tin shed and some vacant space. Under the agreement, looking to its business requirement, the plaintiff was also allowed to develop the same. Rent agreement entered between the parties was renewed from time to time and the last such agreement was executed on 3rd day of January, 2012. In the meantime Sahyamal Goenka died and the defendants succeeded in his place as Goenka's legal representative. Looking to the increase in the business of the plaintiff, the defendants granted licence to the plaintiff for making additional construction at its own fund and to use such construction for business purpose. The plaintiff took the stand that it has developed the vacant land and constructed the sheds of permanent nature incurring huge expenses and it has neither breached nor violated any terms and conditions of the deed. The period of last agreement was till 31st December, 2017. It is when the plaintiff was running with its business peacefully, all of sudden evil design crept in the mind of the defendants, who accordingly issued a notice under Section 106 of the Transfer of Property Act intimating therein that the plaintiff's tenancy to come to an end from the date of expiry of the agreement dated 31.12.2016. Finding no resolution of the dispute, the plaintiff was forced to undertake the suit proceeding with the prayers as indicated already. Referring to Clause-8 in the agreement, the plaintiff contended that the lesser would allow 10 feet wide space on eastern side of the workshop and 6 feet wide space in front of the workshop as common space. But since on the eastern side of the plot no.26 no vacant space was available, the defendants agreed to allow the plaintiff to utilize the northern portion of the plot no.26 for the purpose of parking of the vehicles. It is further alleged that unfortunately, the defendants with ulterior motive tried to restrain the petitioner, the plaintiff from utilizing the vacant space at the northern portion of plot no.26.

Upon receipt of notice in the suit, the defendantO.Ps. filed written statement along with counter-claim denying the claim with regard to open space by the plaintiff with a flat denial. It is finding the flat denial of the defendants on the request of the claim of the plaintiff filed an application under Order 26 Rule 9 of C.P.C. seeking appointment of Civil Court Commissioner for identification of certain dispute claiming to be relevant for the purpose of effective adjudication of the suit. The application being opposed was decided on contest with a dismissal order by the trial court finding place at Annexure-6.

3. Sri G.Mukherji, learned counsel for the plaintiffpetitioner assailing the impugned order submitted that the impugned order is against sound judicial principle and also against the purpose involving the provision. Sri Mukherji, learned counsel for the petitioner taking help of the provision under Order 26 Rule 9 of C.P.C. and the deci