IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1690 of 2025 Mukteswar Panda …. Petitioner Mr. R.C. Rath, Advocate -versus- Rajendra Prasad Chaini & Another …. Opp. Parties Mr. B. Das, Advocate CORAM: THE HON’BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No. ORDER 05.02.2026 02. 1. This matter is taken up through Hybrid mode. 2. Heard learned counsel for the Petitioner. Perused the CMP as well as the documents annexed thereto. 3. By filing the present CMP, the plaintiff in C.S. No.290 of 2023 pending in the Court of learned Civil Judge (Senior Division), Bargarh has approached this Court by filing the present application under Article 227 of the Constitution of India thereby challenging the order dated 10.10.2025 passed by the learned trial Court. 4. By virtue of the impugned order dated 10.10.2025 the learned trial Court rejected the application of the plaintiff petitioner for deputing a survey knowing Commissioner under Order 26 Rule 9 of the CPC. 5. Learned counsel for the petitioner at the outset contended that the petitioner plaintiff has filed the suit for Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Feb-2026 15:49:56 Signature Not Verified p. 2 declaration of right, title and interest and for permanent injunction. In the suit when the evidence from the side of the petitioner was being recorded, an application was filed for deputing a survey knowing commissioner under Order 26 Rule 9 of the CPC. Learned counsel for the petitioner further contended that deputation of a survey knowing commissioner is highly essential. However, the learned trial Court vide order dated 10.10.2025 has rejected the application of the petitioner plaintiff on the ground that evidence from both the sides has not yet been closed. Therefore, deutation of a survey knowing Commissioner would amount to collecting evidence from the side of the plaintiff. It was further observed that the dispute in question could be ascertained once evidence from both the sides is closed. It is only after closure of the evidence from both sides, the learned trial Court would arrive at a conclusion as to whether a Commissioner is required to deputed or not. 6. Mr. Das learned counsel for the opposite party on the other hand contended that he has no objection to the deputation of a survey knowing Commissioner, however, he has objection to deputation of survey knowing Commissioner at this stage. Moreover, usually a survey knowing commissioner is deputed after closure of the evidence. He further contended that he has no objection if a direction is given to the learned trial Court for deputation of a survey knowing Commissioner under Order 26 Rule 9 after closure of the evidence from both the sides. 7. In reply to the submission made by learned counsel for the opposite parties, leaned counsel for the petitioner Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Feb-2026 15:49:56 Signature Not Verified p. 3 referred to the judgment of this Court in the case of Bhabesh Kumar Das vrs. Mohan Das Agrwal reported in 2015 (Supp-II) OLR 984. 8. On perusal of the aforesaid judgment, this Court found that the Single Bench of this Court had earlier on an application under Order 26 Rule 9 of the CPC held that there is no particular stage prescribed for appointment of survey knowing Commissioner under Order 26 Rule 9 of the CPC. It has also been observed by the learned Single Judge that when the legislature in its wisdom has not prescribed the stage of appointment of Survey Knowing Commission, the power of the Court to appoint the Survey Knowing Commissioner cannot be cabined, cribbed or confined. This Court is in full agreement with the observation made by the Coordinate Bench. However, it is also a fact that Order 26 Rule 9 confers the discretionary power on the learned trial Court with regard to deputation of a survey knowing Commissioner. In the present case on a careful examination of the impugned order, this Court found that the learned trial Court has not committed any illegality in exercising its discretion under Order 26 Rule 9 of the CPC. Thus this Court is of the view that the impugned order dated 10.10.2025 does not need any interference by this Court at this stage. 9. Furthermore, taking into consideration the fact that both sides are agreeable to the proposal that they have no objection if a survey knowing commissioner is Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Feb-2026 15:49:56 Signature Not Verified p. 4 amit deputed after closure of the evidence from both the sides, this Court while disposing of the application directs the learned trial Court to do well to depute a survey knowing Commissioner after closure of the evidence from both sides. 10. With the aforesaid observation and direction, the CMP stands disposed of. (Aditya Kumar Mohapatra) Judge