p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1347 of 2024 Guni @ Gouri Muduli and others …. Petitioners Mr. S. Mishra, Sr. Advocate -Versus- Shyamsundar Muduli and others …. Opposite parties CORAM: MR. JUSTICE R.K. PATTANAIK Order No. ORDER 13.05.2025 01. 1. Heard Mr. Mishra, learned Senior Advocate for the petitioners. 2. No notices are issued to the opposite parties including opposite party Nos.6 to 11 and the same is dispensed with for a disposal of the matter at the stage of admission. 3. Instant petition is filed by the petitioners assailing the correctness of the impugned decision by order dated 12th August, 2024 at Annexure-5 passed in connection with C.S. No.104 of 2018 by learned Civil Judge, Senior Division, Nimapara, whereby, an application under Order 26 Rule 9 CPC pressed into service by them seeking appointment and deputation of a Civil Court Commissioner was declined. 4. Referring a copy of the plaint at Annexure-1 and facts pleaded in the application under Order 26 Rule 9 CPC as at Annexure-3, Mr. Mishra, learned Senior Advocate for the petitioners submits that a local investigation is necessary in order to ascertain, whether, there is a passage situate in between plot Nos. 161 and 162 as has been claimed by the plaintiffs or a house of defendant Nos.1 to 7 on the said strip of land in southern half of p. 2 plot No.162 adjoining plot No.161 or if at all, a road under the PMSY Scheme exists at the spot to the west of plot No.162 in view of the evidence on record and expunction of such evidence of plaintiff No.1. The further submission is that the evidence on record is not sufficient to address the suit but learned court below failed to take judicial notice of the same and refused any such local investigation with the assistance of a Civil Court Commissioner on an erroneous premise that it is not a case of boundary dispute between the parties. The contention of Mr. Mishra, learned Senior Advocate is that with such a conclusion, learned court below could not have denied the local investigation of the suit schedule property, which is essential for a just decision in the suit, hence, therefore, the impugned order at Annexure-5 passed therein is liable to be interfered with. 5. Perused the averments in the plaint at Annexure-1. The petitioners filed the WS before the learned court below, which is at Annexure-2 and therein, it has been pleaded that a village road over plot No.220 situates to the South of plot No.225/1344 and a PMGSY road over plot No.166 to the West of plot No.162 adjoining to the same, which has been contradicted by the opposite parties. A copy of the objection of the opposite parties is at Annexure-4 and the same is also gone through. In fact, the dispute is over location of a road in between Plot No.161 and 162 or existence of a house over, whether, the same belonging to defendant Nos.1 to 7. In view of the pleadings on record and submission of Mr. Mishra, learned Senior Advocate for the petitioners, despite having the evidence received, the real dispute lies with regard to existence of a house or a passage over the suit schedule property which demands a local investigation. The Court is an agreement with the contention of Mr. Mishra, learned Senior Advocate considering the facts pleaded in the plaint (Annexure-1) and also the WS at Annexure-2. In fact, a specific plea was p. 3 advanced and it was on the strength of the evidence received with a questionnaire in the application i.e. Annexure-3 and though, it was followed by an objection at Annexure-4, the Court is of the humble view that a local investigation is necessary. Having said that, the Court is of the conclusion that learned court below fell into an error to hold that the local investigation is unnecessary. In fact, the above conclusion of learned court below is inconsistent with the pleadings on record, so therefore, the ultimate view of the Court is that the local investigation is indispensable but then the request received as per Annexure-3 was declined, which is, hence, hereby to be directed to be held and conducted by a Civil Court Commissioner in terms of Order 26 Rule 9 CPC. 6. Accordingly, it is ordered. 7. In the result, the CMP stands allowed. As a necessary, corollary, the impugned order dated 12th August, 2024 as at Annexure-5 in C.S. No.104 of 2018 by learned Civil Judge, Senior Division, Nimapara is hereby set aside with a direction to issue a writ for local investigation through a Civil Court Commissioner and thereafter, upon receipt of the report on the questionnaire to proceed and to deal with it as per and in accordance with law. In the circumstances, however, there is no order as to costs. 8. Urgent copy of this order be issued as per rules. (R.K.Pattanaik) Judge Rojina Designation: Junior Stenographer