Page 1 of 6. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.443 of 2026 Bhaskar Pani and others ..... Petitioners Represented by Adv. - Samir Kumar Mishra, (Sr. Adv.) -versus- Basanta Kumar Mishra and others ..... Opposite Parties Represented by Adv. - CORAM: THE HON’BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 16.03.2026 Order No. 01. 1. This matter is taken up through Hybrid mode. 2. Heard Mr. S.K. Mishra, learned Senior Counsel for the Petitioners. 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.58 of 2012, pending in the court of learned Civil Judge (Senior Division), Angul has approached this Court thereby challenging the impugned order dated 29.01.2026 at Annexure-7 passed by the learned trial Court whereby the prayer of the plaintiff to amend the plaint under Order 6 Rule 17 of the CPC has been rejected. 4. Learned Senior Counsel for the Petitioners at the outset contended that the Petitioners as plaintiff has filed a suit seeking Page 2 of 6. declaratory relief of the easementary right of way over the suit land and for removal of obstruction and permanent injunction, against the defendants. He further submitted that during the pendency of the suit on the application of the plaintiff-Petitioners a Court Commissioner was deputed under Order 26 Rule 9 of CPC for inspection and identification of the suit land. Accordingly, the Court Commissioner submitted a report. Learned Senior Counsel for the Petitioners at this juncture contended that such report of the Court Commissioner has been accepted without any objection by the defendant Nos.1 to 3. 5. Learned Senior Counsel for the Petitioners at this juncture contended that there are certain discrepancies with regard to the measurement of the suit land as has been pointed out by the Court Commissioner in its report submitted under Order 26 Rule 9 of CPC to the court. At the stage of hearing of the suit an application under Order 6 Rule17 of CPC was filed to bring the pleading in conformity with the report of the Court Commissioner. In support of such amendment at a belated stage, learned Senior Counsel for the Petitioners contended that the proviso to Order 6 Rule 17 of CPC, i.e. with regard to application of the due diligence test would not be applicable to the facts of the Petitioners’ case as the necessity to amend the plaint arose only after the Amin Commissioner submitted his report and the same was accepted by the Court without any objection by the defendants. He further submitted that the amendment sought for is formal in nature and that the same will provide better clarity with regard to the measurement and identity of the suit scheduled land. He further contended that the proposed amendment shall not change the nature and character of the suit land. On such ground, learned Senior Counsel for the Petitioners Page 3 of 6. contended that the impugned dated 29.01.2026 at Annexure-7 rejecting the prayer of the plaintiff for amendment of the plaint was unsustainable in law and accordingly, the same should be set aside. 6. On perusal of the impugned order dated 29.01.2026 passed in the above noted C.S. No.58 of 2012, this Court observes that it is a fact that during pendency of the suit on the application of the plaintiffs a survey-knowing Amin Commissioner was deputed for local investigation and measurement of the disputed plot. Such commissioner in fact submitted his report citing the measurement. Further, it appears from the impugned order that such report of the survey-knowing Amin Commissioner was accepted by the court without any objection from the side of the defendants. However, when the plaintiff filed this application seeking amendment of the plaint on the basis of such Amin Commissioner Report the defendants objected to the same on various grounds including the one that the proposed amendments are not necessary for effective and just adjudication of the real question in controversy in the suit. The learned trial Court upon a careful consideration of the pleadings from both sides has come to a conclusion that the extent of measurement of land as has been indicated in the Amin Commissioner Report with regard to the suit scheduled land cannot be changed by the plaintiff by filing an amendment application at that stage and that the same will introduce a completely new case. The learned trial Court has also referred to the proviso to Order 6 Rule 17 of CPC with regard to the due diligence test and has laid emphasis on the fact that the proposed amendment was sought for at the stage of final argument of the suit. It has also observed that the plaintiff could have measured the suit land much earlier to Page 4 of 6. measurement made by the concerned Amin. The learned trial Court has also expressed his apprehension with regard to the fact that in the event such amendment is allowed there is every possibility that the parties might litigate afresh with reference by the measurement done by the Amin Commissioner. Accordingly, the learned trial Court has rejected the prayer of the Petitioners for amendment of the plaint. Being aggrieved by such order the Petitioners have approached this Court by filing the present application. 7. On a careful scrutiny of the impugned order dated 29.01.2026, this Court observed that while passing the impugned order the learned trial Court has taken note of certain crucial aspects of the matter. The first, being the law with regard to the pleading by a party to the suit. The plaintiff is required to plead the substance of the issue and he is not required to give every detail thereof in his pleading. With regard to details on description of the property, it is open to the parties to the suit to establish the same by leading evidence during the hearing of the suit. Moreover, the evidentiary value of the report of the Amin Commissioner is well settled by a catena of judgments of this Court as well as the Hon’ble Supreme Court. Such report under Order 26, Rule 9 of CPC is subject to the condition that the Amin Commissioner is required to be examined as a witness by providing opportunity to the contesting parties to cross- examine such witness. In the instant case such aspect has not been dealt with by the learned trial Court, particularly in view of the assertion of the learned Senior Counsel for the Petitioners that the Report of the Amin Commissioner was never objected to by the defendant Nos.1 to 3 in the suit. Thus, there exists a presumption with regard to the correctness and validity of the Amin Page 5 of 6. Commissioner’s Report as the same was not objected to by the defendants, although the Amin Commissioner was sent on the prayer of the plaintiff. 8. With regard to the finding of the learned trial Court that the plaintiff should have given the correct measurement of the land at the time of filing of the suit by carrying out a proper measurement, this Court, on a careful analysis of the factual background of the present case, found that the plaintiff has approached the learned trial Court by filing a suit for declaration of his easementary right of way over the suit land and for removal of the obstruction and for permanent injunction against the defendants as it appears that the disputed suit land was being used as a passage. Although the plaintiff in the plaint has given the measurement describing the same as 10 links in width and 120 links in length, however, as per the measurement done by the Amin Commissioner, it appears that the measurements are different to the one reflected in the plaint. Such discrepancy is required to be considered by the learned trial Court by keeping in view the report of the Amin Commissioner which was sent for at the instance of the plaintiff. 9. Further, while considering the prayer of the present Petitioners with regard to amendment of the plaint, this Court is of the considered view that it is a settled position of law that deputation of a Court/ Amin Commissioner under Order 26 Rule 9 of CPC shall not be used to collect evidence on behalf of the parties to the suit. Such power conferred upon the trial Court is to be used by the learned trial Court for the purpose of local investigation and measurement of the disputed suit land. The objective behind having such a provision in the CPC is to enable the learned trial Court know Page 6 of 6. about the disputed land in details so that it can arrive at the right conclusion and to decide the dispute between the parties effectively. It is not disputed that such report of the Amin Commissioner cannot be used as evidence, otherwise the same would amount to collecting evidence by the Court Commissioner with the aid of Order 26 Rule 9 of CPC. 10. In view of the aforesaid analysis of the factual as well as the legal position, and on a careful examination of the impugned order, this Court is of the view that the learned trial Court has not committed any illegality in not permitting the amendment as pleaded for by the plaintiff at the belated stage. However, while disposing of the present CMP application this Court further clarifies that in the event report of the Amin Commissioner has not been objected by the defendants, the same can very well be relied upon at the time of final hearing of the suit and that the suit shall be adjudicated keeping in view the measurement provided by the Amin Commissioner, which has not been objected to by the parties. 11. With the aforesaid observation/ direction, the present CMP application stands disposed of. ( Aditya Kumar Mohapatra ) Judge S.K. Rout