Akshaya Kumar Rath, J.@mdash1. Assailing the order dated 15.4.2008 passed by the learned 2nd Additional Civil Judge (Sr. Division), Bhubaneswar in T.S. No. 542 of 1998, the instant petition has been filed under Article 227 of the Constitution of India. By the said order, the learned trial court rejected the application of the plaintiff under Order 26 Rule 9 C.P.C. to depute a Survey Knowing Commissioner for local investigation.
2. The petitioner as plaintiff instituted T.S. No. 542 of 1998 in the court of the learned 2nd Additional Civil Judge (Sr. Division), Bhubaneswar for declaration of right, title, interest and possession over ''A'' and ''C'' schedule property, recovery of possession of ''B'' schedule property, easementary right over ''D'' schedule property and permanent injunction restraining the defendants from interfering with her possession and other consequential reliefs. Pursuant to issuance of summons, the defendants entered appearance and filed written statement denying the assertions made in the plaint. After closure of evidence, an application under Order 26 Rule 9 C.P.C. was filed by the plaintiff to depute a Survey Knowing Commissioner for local investigation of the suit plot and to ascertain (1) whether the existing northern boundary wall raised by Utkal University is within the area of drawing plot No. 7(A) as indicated in the Drawing No. 670 as has been filed by defendant No. 1, (2) as to whether hal plot No. 37/614 as per the Hal Map corresponds to drawing No. 7(A) allotted in favour of the Utkal University as revealed from the certified copy of the drawing No. 670, (3) whether to the further north of the north boundary wall constructed by Utkal University any area of plot No. 37/614 are still available or the same is coming under hal plot No. 36 and (4) whether in between the northern boundary wall line of plot No. 7(A) and sabik plot No. 68 there was any other plot in sabik position. The defendants 1 and 2 filed objection to the same stating that on earlier occasion, this Court appointed a Civil Court Commissioner to measure the land to find out if any of the parties has raised any construction on the land of others and if so, remove the same. The Additional Chief Judicial Magistrate, Bhubaneswar was directed to submit the report. The Additional Chief Judicial Magistrate had submitted its report and the plaintiff has admitted the same. To patch up the lacuna, this petition has been filed. There is no necessity to appoint another Commissioner once again. By order dated 15.4.2008, the learned trial court came to hold that Ext. D, which was finally published on 13.4.1987, shows that plot No. 37/614 appertaining to khata No. 78 of mouza-Vani Vihar stands recorded in the name of Utkal University. The Government of Orissa, which is lessor, have stated in the pleadings as well as in the evidence that the said land had been leased out, which is proved under the cover of Ext. C. and possession was handed over to University. The report of the higher judicial officers after measurement by the survey knowing experts in presence of both the parties has been proved. Thus, there is no special circumstance to exercise the discretion conferred on him in favour of the plaintiff. The learned trial court further held that in the event, a Commissioner is deputed, it may cause prejudice to the defendants. Held so, the learned trial court rejected the application.
3. Heard Mr. R.C. Sarangi, learned counsel for the petitioner and Miss. Meera Ghosh, learned counsel for opposite parties 1 and 2 as well as the learned Additional Government Advocate for opposite parties 3 and 4. None appeared for opposite party No. 5.
4. Mr. Sarangi, learned counsel for the petitioner submitted that the learned trial court committed a manifest illegality in rejecting the application of the plaintiff. The learned trial court has accepted R.I. of G.A. Department. Though in the written statement, it is stated that plot No. 36/614 had been leased out in favour of Utkal University, but the same has been disputed by the plaintiff. The documentary as well as oral evidences has been adduced by the plaintiff to falsify the claim of the Utkal University as well as G.A. Department. The Utkal University in collusion with the subordinate officials of G.A. Department has succeeded in bringing the evidence of R.I. of G.A. Department to the effect that in the sabik position, the corresponding plot of hal plot No. 37/614 had been leased out to the Utkal University. O.P.P. Case No. 31 of 1985 was initiated against the husband of the plaintiff in respect of part of hal plot No. 37/614. Thus, inference is irresistible that the said plot was not leased out to defendant No. 1. Thus, the observation of the learned trial court with respect to the record of right and the admission in the pleadings is not warranted. The learned trial court has not assigned any reasons as to how the defendants will be prejudiced in the event appointment of a Survey Knowing Commissioner. He further submitted that the nature of dispute can be resolved, if the Survey Knowing Commissioner is appointed.
5. Per contra, Miss. Ghosh, learned counsel for opposite parties 1 and 2 submitted that husband of the plaintiff filed a writ application, being OJC No. 11557 of 1998, before this Court challenging the action of the opposite parties in interfering with his possession. Pursuant to the order of the Division Bench of this Court, the learned Additional Chief Judicial Magistrate, Bhubaneswar went to the spot along with Court Amin and the survey knowing officer, who happens to be the Assistant Settlement Officer, Puri deputed by the Director, Survey and Settlement, Cuttack. He submitted its report. The report has been exhibited in the suit. After closure of evidence, the instant petition has been filed to protract the litigation.
6. In Radhey Shyam and another vs. Chhabi Nath and others, , AIR 2015 SC 3269, the apex Court held that judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution and jurisdiction under Article 227 is different from jurisdiction under Article 226.
7. Dealing with the scope of Article 227 of the Constitution, the apex Court in Municipal Corporation of Delhi vs. Sh. Jai Singh and Others, 2010 AIR SCW 5968 held thus.
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Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to 6 exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It cannot be exercised like a ''bull in a china shop'', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it cannot substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.
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8. In Dr. Bimal Kanta Tripathy Vs. Satya Narayan Mishra and another (W.P.(C) No. 11565 of 2008 disposed of on 1.10.2015), this Court in paragraphs 5 and 6 of the judgment held thus:-
05. Order 26 Rule 9 C.P.C. is quoted hereunder.
"9. Commissions to make local investigations--In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
06. In Bhabesh Kumar Das v. Mohan Das Agrawal, 2015 (II) CLR 603, this Court held as under:
"In the case of Prasanta Kumar Jena Vs. Choudhury Purna Ch. Das Adhikari, , 99 (2005) CLT 720, the learned Single Judge of this Court held that an application under Order 26 Rule 9 C.P.C. can be considered only after closure of the evidence when the court finds difficult to pass an effective decree on the existing evidence. Relying on the said decision, learned Single Judge of this Court set aside the order of appointment of Survey Knowing Commissioner for measurement and demarcation of the land passed by the learned trial court. The same was challenged before this Court in the case of Ram Prasad Mishra Vs. Dinabandhu Patri and another. The Bench speaking through Mr. V. Gopala Gowda, C.J. (as he then was) held that the learned Single Judge has interfered with the order passed by the learned trial court in appointing the Survey Knowing Commissioner ignoring the decision of this Court in the case of Mahendranath Parida Vs. Purnananda Pardia and others, , AIR 1988 ORISSA 248. Thus, the decision in the case of Prasanta Kumar Jena (supra) has been impliedly overruled by the Division Bench of this Court.
In Mahendranath Parida (supra), this Court held that when the controversy is as to identification, 5 location or measurement of the land or premise or object, local investigation should be done at an early stage so that the parties can be aware of the report of the Commissioner and can go to trial prepared.
In Ramakant Naik and others Vs. Bhanja Dalabehera, , 2015 AIR CC 1724 (ORI), this Court held that issuance of a Commission for local investigation is the discretion of the Court. While considering the prayer for appointment of Commission, the Court must apply its mind to the facts and circumstances of the case and pass order. No straight jacket formula can be laid down. Before issuance of Commission, the Court must be satisfied that there is prima facie case in favour of the applicant. On a reading of Order 26 Rule 9 C.P.C., it is manifest that the stage of appointment of Survey Knowing Commissioner has not been prescribed. When the legislature in its wisdom has not prescribed the stage of appointment of Survey Knowing Commissioner, the power of the Court to appoint the Survey Knowing Commissioner can not be cabined, cribbed or confined."
9. On the anvil of the decisions cited supra, the instant case may be examined. Gouri Sankar Padhi, husband of the petitioner had filed a writ application challenging the action of the opposite parties in interfering with his possession before this Court, which was registered as O.J.C. No. 11577 of 1998. Pursuant to the direction of the Division Bench of this Court on 14.9.1998 the Additional Chief Judicial Magistrate, Bhubaneswar proceeded to the spot with Court Amin and one Srikanta Mohapatra, Assistant Settlement Officer, Puri, Survey Knowing Commissioner deputed by the Director, Survey and Settlement, Cuttack on 17.9.1998. The parties filed their respective documents. Survey was conducted in their presence. He submitted the report before this Court. Thereafter, the case was disposed of. Challenging the judgment of this Court, opposite parties 1 and 2 approached the apex Court. The apex Court did not incline to interfere with the order passed by this Court and observed that the civil suit shall be decided on its own merit uninfluenced by any observation and/or direction made by the Court in the writ application. The apex Court directed the learned trial court to dispose of the suit within six months. After closure of evidence the plaintiff filed an application under Order 26 Rule 9 C.P.C. to depute a Survey Knowing Commissioner for local investigation to ascertain the questions mentioned (supra). The report of the Commissioner is in record and has been exhibited as Ext. ''D''.
10. The submission of Mr. Sarangi, learned counsel for the petitioner that the petitioner was not a party to the writ application and as such is not bound by any order, is difficult to fathom. The husband of the petitioner filed O.J.C. No. 11577 of 1998 before this Court in respect of the suit schedule plots. Pursuant to the direction of this Court, a Senior Chief Judicial Officer in the rank of A.C.J.M. had been to the spot. In rare and exceptional cases, the High Court appoints the judicial officers as Survey Knowing Commissioner to decide a private dispute. The Commissioner cannot be appointed time and again by the Court at the wish of a party. The said report has not been challenged. The view taken by the learned trial court cannot be said to be perfunctory or flawed. The application has been filed to protract the litigation. The petition, sans merit, is dismissed. No costs.
11. Since the evidence is closed, the learned trial court shall do well to dispose of the suit by end of April, 2016 after hearing the argument of the respective parties.
