Location: Orissa High Court, Cuttack

Date: 12-Jan-2026 14:10:41

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.1127 of 2025

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

of India)

Manorama @ Susila Das … Petitioner

-versus-

Binodini Das and others … Opposite Parties

Advocate(s) appeared in this case:-

For Petitioner : Mr.A.K. Pattajoshi, Advocate

For Opposite Parties : Mr.S.S. Singhdeo, Advocate

(for O.Ps. No.1 & 3 to 8)

Mr.D. Kanungo, Advocate

(for O.P.No.2)

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

7^th January, 2026

B.P. Routray, J.

1. Present CMP is directed against order dated 21^st March 2025 of the learned Senior Civil Judge (LR & LTV), Bhawanipatna passed in C.S. No.41 of 2021, wherein the prayer of the Plaintiff for appointment of Survey Knowing Commissioner under Order 26 Rule

9 of the CPC has been refused.

Location: Orissa High Court, Cuttack Date: 12-Jan-2026 14:10:41

2. Heard Mr. Pattajoshi, learned counsel for the Petitioner and Mr. Singhdeo, learned counsel for Opposite Parties 1 & 3 to 8 as well as Mr.Kanungo, learned counsel for Opposite Party No.2.

3. Present Petitioner being the Plaintiff filed the suit praying for declaration of right title interest and cancellation of several registered sale deeds along with the prayer for permanent injunction, confirmation of possession and other consequential reliefs.

4. When the suit is at the stage of adducing evidence from the side of the Defendants, the Plaintiff after closure of their evidence filed a petition under Order 26 Rule 9 of the CPC praying for appointment of the Survey Knowing Commissioner in order to identify and demarcate the allotted share of the Plaintiff as per the sketch map and the Compromise Decree in C.S. No.54 of 2007 (F.D.), with further prayer to identify the portion of the suit land illegally alienated by Defendant No.1 in favour of others.

5. It is true that, the parties cannot use the Court for collecting evidence in their favour either through a Survey Knowing Commissioner or otherwise. The discretionary power invested in the Court as per the provisions under Order 26 Rule 9 of the CPC is to elucidate the matter in dispute when it is thought fit to direct so.

Location: Orissa High Court, Cuttack Date: 12-Jan-2026 14:10:41 Admittedly, the court cannot be a weapon in the hands of the party to collect evidence for it and unless there is a dispute with regard to identification of the suit land or boundary disputes regarding possession or any such other dispute need to be verified by the civil court commissioner, the appointment of the commissioner by the court would hardly be digested. This Court in the case of Santosh Kumar Parida vs. Narayan Chandra Dash and others, 2020 (II)

ILR-CUT-629, has observed as follows:-

“5.1. Thus, it is apparent that in a suit, the Court may issue a commission to any person for the purpose of ‘elucidating any matter in dispute’ and for all other purposes mentioned in the provision itself. According to Oxford dictionary, the word ‘elucidate’ means ‘to throw light or to make clear, to explain, to remove obscurity from and render intelligible or to illustrate’. According to Cambridge dictionary, it means ‘to explain something or make something clear’. According to Chambers dictionary, it means ‘to make lucid or clear or to throw light upon, to illustrate, making clear, explanatory’. Thus, from the reading of the provision it is manifest that if a matter in dispute in a suit needs any clarification or further explanation, the Court may consider issuance of a commission for that purpose. The language employed in the provision makes it abundantly clear that the Court exercises its judicial discretion while making order for issuance of a commission. But, it must be kept in mind that all matters in dispute in a suit cannot be elucidated through issuance of a commission. Thus, the party Location: Orissa High Court, Cuttack Date: 12-Jan-2026 14:10:41 seeking issuance of a Commission must establish a prima facie case to invoke the pr