Page 1 of 5. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.419 of 2025 Ganeswar Sethi ..... Petitioner Represented by Adv. – Mr. Niranjan Prasad Patra -versus- Dattahari Sethi and others ..... Opposite Parties Represented by Adv. – Mr. Manoranjan Mishra, Advocate for O.P. Nos.1, 2 & 4 Mr. Smita Ranjan Patnaik, Advocate for O.P. No.3 CORAM: THE HON’BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 11.03.2026 Order No. 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard the learned counsel for the Petitioner as well as learned counsel for the Opposite Parties No.1, 2 & 4 and learned counsel for the Opposite Party No.3. Perused the CMP application as well as the prayer made therein. 3. By filing the present CMP application under Article 227 of the Constitution of India, the Plaintiff in C.S. No.290 of 2023 pending in the court of learned Civil Judge (Junior Division), Kendrapara has approached this Court challenging order dated 04.09.2024 passed in I.A. No.250 of 2023, arising out of the very Page 2 of 5. same suit, thereby rejecting the petition of the Plaintiff-Petitioner filed under Order-39 Rule-7 of the C.P.C. with a prayer for local inspection by the Court appointed Pleader Commissioner. 4. The factual background of this case, in short, is that Plaintiff, as a Petitioner, initially filed a suit for declaration of his easementary right over the suit land, confirmation of his possession and for permanent injunction. Along with the suit, I.A. No.250 of 2023 was filed under Order-39 Rule-1 & 2 of the C.P.C. 5. In course of hearing of the I.A. No.250 of 2023, the Plaintiff-Petitioner moved an application under Order-39 Rule-1 & 2 of the C.P.C. Such application was heard by the learned trial court after providing opportunity of hearing to both the sides. Finally, the same was rejected vide impugned order dated 04.09.2024 under Annexure-6 to the CMP application. Being aggrieved by such rejection order, the Plaintiff-Petitioner has approached this Court with a prayer for setting aside the impugned order. 6. In course of his argument, learned counsel for the Petitioner contended before this Court that since the Opposite Parties named in the Interlocutory Application are creating obstruction in the enjoyment of the easementary right to the Plaintiff-Petitioner, Plaintiff-Petitioner filed an application before the trial court under Order-39 Rule-7 of the C.P.C. for local inspection. He further contended that the sole intention of the Plaintiff-Petitioner was to bring on record the fact that the Opposite Parties in the I.A. were creating obstruction in the peaceful enjoyment of the Plaintiff- Page 3 of 5. Petitioner’s easementary right over the suit scheduled land. However, the learned trial court, without appreciating the aforesaid facts in its proper perspective, proceeded on a different footing and came to a conclusion that in the event the application is allowed, the same would amount collection of evidence by the Plaintiff- Petitioner in support of his case involved in a suit. Accordingly, learned counsel for the Plaintiff-Petitioner contended that the learned trial court has committed an illegality by rejecting his application by virtue of order at Annexure-6. 7. Mr. M.R. Mishra, learned counsel appearing for the Opposite Parties No.1, 2 and 4, on the other hand, supported that the impugned rejection order dated 04.09.2024 passed in I.A. No.250 of 2023. He further contended that the onus is on the Plaintiff-Petitioner to lead the evidence and to establish the fact as well as the allegation made by the Plaintiff-Petitioner either in his plaint or his application. In the instance case, the Plaintiff- Petitioner by filing an application under Order-39 Rule-7 of the C.P.C. is trying to collect the evidence through court in support of his stand taken in the suit. He further submitted that collection of evidence under the guise of Order-39 Rule-7 of C.P.C. is prohibited in law. Further, referring to the impugned order dated 04.09.2024, Mr Mishra, learned counsel for the Opposite Parties No.1, 2 and 4 contended that the learned trial court after elaborate discussion of the factual background of the case and further referring to the judgments of this Court as well as the Hon’ble Supreme Court, has come to a categorical finding that the question raised by the Plaintiff-Petitioner is irrelevant for the purpose of the Page 4 of 5. present case and that by allowing application under Order-39 Rule-7 of C.P.C. for local inspection would amount for collection of evidence on behalf of the Plaintiff-Petitioner. In view of the aforesaid position, learned counsel for the Opposite Parties No.1, 2 & 4 contended that the present CMP application is devoid of merit and, accordingly, the same be dismissed. 8. Having heard the learned counsels appearing for both the sides and on a careful examination of the background facts of the present case, on a close scrutiny of the impugned order dated 04.09.2024 at Annexure-6, this Court found that the learned trial court after detailed discussion of the factual background and further taking note of the legal position with regard to the applicability of the Order-39 Rule-7 of the C.P.C. has dismissed the application of the Plaintiff-Petitioner. While rejecting the application of the Petitioner, the trial court has held that in the event the application under Order-39 Rule-7 of the C.P.C. is allowed, thereby directing the local inspection over the suit schedule property, the same would amount to collect self-same evidence by the Plaintiff-Petitioner. It has specifically observed that there is ample material on record to ascertain the real position of the disputed land and that there is no real dispute over the suit land as per the record. It has also been observed that the stage at which the application under Order-39 Rul-7 of the C.P.C. was filed, is not the appropriate stage to file the same as Plaintiff- Petitioner has not led evidence. In view of the aforesaid finding, this Court is of the view that the impugned order does not call for any interference by this Court. Accordingly, this Court refuses to Page 5 of 5. interfere with the impugned order dated 04.09.2024 at Annexure-6. 9. However, while disposing the present CMP application, this Court grants liberty to the Petitioner to move the learned trial court by filing a fresh application after leading evidence. In such eventuality, the learned trial court shall consider such application on its own merit. 10. Learned counsel for the Petitioner, at this juncture, contended that the learned trial court be directed to dispose of the suit within a stipulated period of time. 11. However, considering the fact that the suit is of the year 2023 and that many year old cases are pending before the trial court, this Court is not inclined to pass any such specific order. However, it is open to the Petitioner to move the learned trial court for early disposal of the suit by filing an application. In such eventuality, the learned trial court, subject to its convenience, shall pass necessary orders thereon. Parties before this Court undertake that they will not take any unnecessary adjournments in course of hearing of the suit. 12. With the aforesaid observation and direction, the CMP stands disposed of. (Aditya Kumar Mohapatra ) Judge Debasis