Location: High Court of Orissa, Cuttack

Date: 29-Sep-2025 12:35:26

IN THE HIGH COURT OF ORISSA AT CUTTACK

C.M.P. No. 629 of 2025

(In the matter of an application under Article 227 of the

Constitution of India)

Bidulata Prusty …. Petitioner

-versus-

Kalpana Chattarjee & Ors. …. Opposite Parties

Advocate(s) appeared in this case:-

For Petitioner : Mr. B.Routray, Advocate For Opposite Parties : Mr. A.Das, Advocate for

O.P.1 to 4

Mr. K.Prajwal, Advocate for

O.P.8

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

25^th September 2025

B.P. Routray, J.

1. Heard Mr. B.Routray, learned Advocate for the Petitioner, Mr. A.Das, learned counsel for Opposite Parties 1 to 4 and Mr.

K.Prajwal, learned counsel for Opposite Party No.8.

Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26

2. Present petitioner, who is the Plaintiff in C.S. No.07 of 2017 pending before the Court of learned Civil Judge (Junior Division), Jajpur, has filed the suit with prayer for declaration of his easementary right over the suit scheduled property. The Defendants (present Opposite Parties) appeared in the suit and contested the same. The Plaintiff after adducing her evidence and examining three witnesses on her behalf, filed a petition under Order 26 Rule 9 of CPC praying to depute the Civil Court Commissioner on the questionnaires given in her petition dated 3^rd October 2024. A copy of said petition under Annexure-4 reveals the questionnaires as follows:-

“Questions to be answered

1) Whether any obstruction is being caused at spot on the suit land to pass over by the plaintiff and his family members, if so what are the obstructions ?

2) The commission is to identify or locate the suit land at spot by measurement of suit land and to point out the obstruction whatever made on spot over the suit land?

3) Commissioner is to give a Topography of the suit land with showing obstruction made over the suit land?”

Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26

3. The Defendants objected the prayer that the Plaintiff is trying to improve her evidence through deputation of the Civil Court Commissioner which she failed to produce in course of her evidence.

4. The learned Trial Court upon consideration of the prayer of the Plaintiff, rejected the same vide impugned order dated 4^th March 2025 on the ground that the Civil Court Commissioner cannot be appointed to assist the party to get evidence. It is further observed by learned Trial Court that since there is no dispute with regard to the identification of the suit land and there is no ambiguity or confusion as per the contentions of the parties with regard to identification of the same, no need is there to depute Civil Court Commissioner.

5. It is submitted by Mr. Routray, learned counsel for the Petitioner that as per the contentions of the parties since the situation and topography of the suit land is varying, there is a need to identify the suit land by deputing Civil Court Commissioner.

Location: High Court of Orissa, Cuttack Date: 29-Sep-2025 12:35:26

6. Conversely, Mr. Das, learned counsel for Opposite Parties 1 to 4 submit that by making such prayer the Plaintiff is trying to develop her case and to get evidence additional to her evidence already adduced on record.

7. Admittedly, the suit is at the stage of taking evidence from the side of the Defendants. The Plaintiff has already adduced her evidence. The power of the Court under Order 26 Rule 9 of CPC is undoubtedly discretionary in order to either elucidating the subject of dispute as the Court thinks appropriate to make such investigation or for any other purpose as envisaged under the provisions of Order 26 Rule 9. The power of the Court under aforesaid provision is discretionary and the Court has a discretion to order local investigation or not. The object of local investigation is not so much to collect evidence which can be taken in Court but to obtain evidence which from its peculiar nature can only be had on the spot. Cases of boundary disputes and disputes about the i