Orissa High Court
Gopal Patel vs Nabin Kumar Sahu & Anr. ….. Opposite … on 17 April, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.1549 of 2025
Gopal Patel ..... Petitioner
Represented by Adv. -
Pabitra Kumar Nayak
-versus-
Nabin Kumar Sahu & Anr. ..... Opposite Parties
Represented by Adv. -
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
17.04.2026
Order No.
06. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner. Perused the CMP
application as well as the prayer made therein.
3. By filing the present CMP application, the Plaintiff in CS
No.52 of 2023 pending in the court of learned Civil Judge (Junior
Division), Jharsuguda has approached this Court thereby
challenging order dated 14.08.2025 whereby consideration of the
application of the plaintiff-Petitioner under Order 26 Rule 9 has
been deferred till conclusion of recording of the evidence from both
sides.
4. Learned counsel for the Petitioner at the outset contended
that the Petitioner as plaintiff filed a suit for declaration of right,
title and interest and for permanent injunction against the
defendant-Opposite Parties in respect of suit schedule ‘A’ land. He
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further contended that the defendants appeared in the suit and filed
their WS. While evidence was being recorded from the side of the
plaintiff, the plaintiff filed an application under Order 26 Rule 9 of
the CPC for engagement of a Civil Court Commissioner for
inspection of the suit scheduled properties. He further contended
that such application was filed only with an intention to obtain
clarification with regard to the factual position on ground, which
would eventually assist the court in just and fair adjudication of the
issue involved in the suit.
5. The Opposite Parties-defendants appeared before the learned
trial court and filed their objection to the application of the plaintiff
under Order 26 Rule 9 of the CPC objecting to the maintainability
of such application. It has also been alleged by the defendants that
the plaintiff, in order to fill up the lacuna in his case, is seeking
appointment of the Amin Commissioner by the court. The
defendants also took a stand that the suit has been filed for
declaration of the title and ownership of the plaintiff over the suit
land and the same is to be decided on the basis of the evidence to
be adduced by both sides, both oral as well as documentary. As
such, it was contended on behalf of the defendants that there is no
necessity to engage any Amin Commissioner for inspection of the
suit property and submission of the report.
6. On perusal of the impugned order dated 14.08.2025, this
Court found that the learned trial court took up the application filed
by the plaintiff, petitioner, under Order 26 Rule 9 and after hearing
the parties, disposed of the application by way of the impugned
order dated 14.8.2025, essentially holding that the petition filed by
the Petitioner under Order 26 Rule 9 be kept in abeyance till
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closure of the evidence from both sides. While assailing the
aforesaid impugned order, Learned Counsel for the petitioner
referred to a judgement
of the Hon’ble Supreme Court and contended before this court that
law is well settled that a Civil Court Commission can be appointed
at any stage of the suit. He specifically referred to the judgment in
Rahul S. Shah vs. Jinendra Kumar Gandhi & Ors. reported in
AIR 2021 SC 2161. On perusal of the aforesaid judgment,
particularly in Para 37, the Hon’ble Supreme Court, while referring
to the provision contained in Order 26 Rule 9 has observed as
follows:-
“37. It also becomes necessary for the Trial Court to
determine what is the status of the property and when the
possession is not disputed, who and in what part of the suit
property is in possession other than the Defendant. Thus,
the Court may also take recourse to the following actions:
a) Issue commission Under Order XXVI Rule 9 of Code
of Civil Procedure.
A determination through commission, upon the
institution of a suit shall provide requisite assistance to
the court to assess and evaluate to take necessary steps
such as joining all affected parties as necessary parties
to the suit. Before settlement of issues, the Court may
appoint a Commissioner for the purpose of carrying out
local investigation recording exact description and
demarcation of the property including the nature and
occupation of the property. In addition to this, the Court
may also appoint a Receiver Under Order XL Rule 1 to
secure the status of the property during the pendency of
the suit or while passing a decree.
b) Issue public notice specifying the suit property and
inviting claims, if any, that any person who is in
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possession of the suit property or claims possession of
the suit property or has any right, title or interest in the
said property specifically stating that if the objections
are not raised at this stage, no party shall be allowed to
raise any objection in respect of any claim he/she may
have subsequently.
c) Affix such notice on the said property.
d) Issue such notice specifying suit number etc. and the
Court in which it is pending including details of the suit
property and have the same published on the official
website of the Court.”
7. Learned counsel for the Petitioner also referred to the
judgment of this court in Mahendranath Parida vs. Purnananda
Parida & Ors. reported in AIR 1988 Ori 248, wherein this court
has also categorically held that wherever local investigation is
considered necessary, the Court should not ordinarily refuse to
appoint a Commissioner for the purpose of elucidating any matter
in dispute between the parties. He also referred to the judgment of a
Coordinate Bench of this Court in Dhamali Patel vs. Plant
Manager, LPG Bottling Plant, Jharsuguda and Another, decided
in CMP No.473 of 2016 vide judgment dated 31.10.2025. The
learned Coordinate Bench in the said judgment while deciding an
identical application under Order 26 Rule 9 of the CPC has
categorically held that there is no bar or prohibition under law for
deputation of a Survey Knowing Commissioner in a suit before
starting of the evidence. While arriving at such a conclusion, the
learned Coordinate Bench has referred to the judgment of various
High Courts. In view of the aforesaid settled legal position, learned
counsel for the Petitioner contended that the conduct of the learned
trial court in keeping the application of the Petitioner under Order
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26 Rule 9 in abeyance is unknown to the procedure laid down in
the Civil Procedure Code. Moreover, such an approach is contrary
to the settled principles of law as has been laid down by this Court
as well as by the Hon’ble Supreme Court. Accordingly, learned
counsel for the Petitioner prayed for setting aside the impugned
order dated 14.08.2025 at Annexure-5.
8. Despite valid service of the notice on the defendants-
opposite parties, none appears for the defendants when the matter
was taken up for hearing.
9. On a careful consideration of the CMP application, as well as
the documents annexed thereto, further on a close analysis of the
submissions made by the learned counsel for the Petitioner, this
Court observes that the Plaintiff-Petitioner, being aggrieved by the
decision of the learned trial court to keep his application under
Order 26 Rule 9 by the plaintiff in abeyance till the evidence stage,
has approached this Court with a prayer for setting aside the
impugned order dated 14.08.2025. The provision contained in
Order 26 Rule 9 of the CPC is very clear from a plain reading of
such provision. An application under Order 26 Rule 9 of the CPC
requesting for local inspection through a court-appointed
commissioner can be filed at any stage of the suit, subject to
satisfaction of the learned trial court that there is such necessity. In
the present case, the learned trial court, after hearing the counsels
from both sides, has kept the application pending till closure of the
evidence. Such procedure adopted by the learned trial court is
unknown to law. When an application is filed under Order 26 Rule
9 by either of the parties, the court is under a legal obligation to
decide such application, and the hearing of such application should
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not be deferred as has been done in the present case. Moreover, the
law is fairly well settled that there is no bar in law with regard to
any particular stage at which such an application can be filed by the
parties seeking appointment of the court-appointed commissioner.
10. In view of the aforesaid analysis of the legal position, further
on a close scrutiny of the impugned order dated 14.08.2025, this
Court is of the view that the learned trial court has committed an
error by keeping in abeyance the petition filed by the plaintiff
petitioner under Order 26 Rule 9 of the CPC. Accordingly, the
order dated 14.08.2025 is hereby set aside. Further, the matter is
remanded back to the learned trial court to consider and dispose of
the application filed by the plaintiff under Order 26 Rule 9 as
expeditiously as possible, preferably within a period of four weeks
after providing ample opportunity of hearing to both sides. Such
application shall be disposed of on its own merits by keeping in
view the judgments referred to hereinabove.
11. With the aforesaid observations/ directions, the CMP
application stands disposed of.
( A.K. Mohapatra )
Judge
Anil
Signature Not Verified Page 6 of 6.
Digitally Signed
Signed by: ANIL KUMAR SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 21-Apr-2026 11:51:22