Page 1 of 6. 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 Page 2 of 6. 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 Page 3 of 6. 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 Page 4 of 6. 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 Page 5 of 6. 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 Page 6 of 6. 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 Designation: Junior Stenographer