D/L- 25 16/09/2026 Ct. No.- 6 Aritra C.O. 3188 of 2026 Mr. Dhiraj Kumar Patra & Ors. Vs. Jahanara Begum & Ors. Mr. Jahar Lal Roy Ms. Kavita Rani ….for the petitioners This application under Article 227 of the Constitution of India is at the instance of the defendants and is directed against an order being no.182 dated August 8, 2026 passed by the learned Civil Judge (Sr. Div.) at Tamluk in J. Misc. Case No.5 of 2016 arising out of Title Suit No.79 of 2016. Mr. Roy, learned advocate appearing for the petitioners submits that the preliminary decree in the suit for partition is yet to be passed and, therefore, there is no question of appointing a partition Commissioner at this stage. J. Misc. Case No.5 of 2016 has been filed by the opposite parties under Order XXXIX Rule 2A of the Code of Civil Procedure alleging that the petitioners have made construction in violation of the order of injunction. In aid of the said J. Misc. case the opposite parties filed an application under Order XXVI Rule 9 of the Code of Civil Procedure. The learned trial judge allowed the prayer for appointment of a survey Commissioner and appointed a survey Commissioner for holding commission of the disputed property and to submit a report. 2 After going through the application praying for local investigation, this Court finds that at the time of evidence in J. Misc. case a suggestion was given to P.W.1 that the new construction was made on plot no.616. For such reason the opposite parties filed an application for local investigation in order to ascertain whether the construction was made on non-suit plot no.616 or the suit plot no.617. The petitioners contested the said application for local investigation by filing written objection. In the said written objection the petitioners have specifically admitted that pursuant to the sanctioned building plan the petitioners have made construction on R.S. Dag No.616 and he has not made any construction on R.S. Dag No.617. The scope of adjudication in J. Misc. case under Order XXXIX Rule 2A of the Code of Civil Procedure is whether any construction have been made in violation of an order of injunction passed in respect of the suit property which is R.S. Dag No.617. In order to ascertain as to whether the impugned construction has been made on R.S. Dag No.616 or 617, a local investigation is necessary. The learned trial judge was right in allowing the prayer for appointment of a survey passed Commissioner for holding commission work and for submitting the report. Mr. Roy, learned advocate appearing for the petitioners may be justified in arguing that there is no 3 question of appointment of a partition Commissioner at this stage. It is clarified that though the learned trial judge in the order impugned recorded that the Commissioner is appointed for holding partition commission but the same should be considered as appointment of a survey Commissioner for the purpose of holding commission on the points mentioned in the schedule of the application for local investigation. The order impugned stands clarified with the aforesaid observations. Accordingly, CO 3188 of 2026 stands disposed of. There will be no order as to costs. All parties shall act on the server copy of this order duly downloaded from the official website of this Court. (Hiranmay Bhattacharyya, J.)