Location: OHC, Cuttack

Date: 15-Jan-2026 14:06:39

IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.608 of 2025

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

India)

Gobinda Chandra Jena and Others …. Petitioners

-versus-

Sukanti Jena and Others … Opposite Parties

Advocate(s) appeared in this case:-

For Petitioners : Mr. Prasanna Kumar Rath, Advocate For Opp. Parties : Mr. M. Banerjee, counsel for O.P.6-8

CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

7^th January, 2026

B.P. Routray, J.

1. Heard Mr. P.K. Rath, learned counsel for the petitioners and Mr.

M. Banerjee, learned counsel for opposite parties 6 to 8.

2. Present CMP is directed against order dated 22^nd October, 2024 of learned 3^rd Additional District Judge, Puri passed in RFA No.53 of 2014, wherein the prayer of the appellant under Order 26 Rule 9 C.P.C. has

been rejected.

3. Present petitioner, who is the appellant in RFA No.53 of 2014, was the plaintiff in the suit. The suit was filed praying for declaration or right,

Location: OHC, Cuttack Date: 15-Jan-2026 14:06:39 title, interest and permanent injunction against the defendants in respect of the suit land. The suit land, as described in the plaint, has been marked in red-colour in the sketch map given along with the plaint. The trial court rejected the prayer of the plaintiff and dismissed the suit against which he filed RFA No.53 of 2014. During pendency of 1^st appeal, a prayer was made by the plaintiff for appointment of survey knowing commissioner for local investigation of the suit land in order to submit a report regarding topography of the land. Such prayer has been rejected by the 1^st Appellate Court with the observation that the same is unnecessary in the appeal and more over the plaintiff has never prayed for same during pendency of the suit.

4. It is well settled that the Appellate Court has the ample discretion to exercise all such powers of the trial court either for appreciation of evidence or in order to do complete justice to the parties. The discretionary power of the court to appoint the survey knowing commissioner in terms of Order 26 Rule 9 C.P.C. has been well settled in catena of decisions. 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 Location: OHC, Cuttack Date: 15-Jan-2026 14:06:39 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 seeking issuance of a Commission must establish a prima facie case to invoke the provision. He cannot use the Court to collect evidence on his behalf in the guise of invoking the power of the court under the provision, unless the occasion so arises. Thus, the party to the suit seeking issuance of a commission must, at the first instance, make an endeavor to lead evidence to prove his case on the issue involved. Only when the evidence or material on record is insufficient or needs clarification or the parties are unable to lead evidence on any p