Authority: High Court of Orissa at Cuttack
Order Date: 27 August 2026
Case Overview
- Parties: Petitioner – Jitendriya Satpathy; Opposite Party – Rastriya Gramanchal Seba Samiti, Gudianali, Dhenkanal.
- Underlying Suit: C.S. No.172/2019 filed by the Opposite Party alleging that the Petitioner constructed a high‑rise building encroaching on the Opposite Party’s private land.
- Petitioner’s Relief: Petition under Section 9 of the Code of Civil Procedure (CPC) seeking dismissal of the suit.
- Opposite Party’s Relief: Application under Order XXVI Rule 9 of the CPC for appointment of a Survey Knowing Advocate Commissioner to determine the extent of alleged encroachment.
- Procedural History: Both the Section 9 petition and the Order XXVI Rule 9 application were heard together. The Section 9 petition was rejected, and the Order XXVI Rule 9 application was allowed by the learned Additional Senior Civil Judge, Dhenkanal, through an order dated 22 November 2025 (referred to as the impugned order).
- Petitioner’s Contentions: The petitioner argued that the order allowing the appointment of the Survey Knowing Advocate Commissioner was passed without affording him an opportunity of hearing, violating procedural law. He also asserted that evidence in the main suit had not yet commenced, rendering the appointment of a commissioner premature and impermissible.
Final Outcome
- The High Court set aside the impugned order dated 22 November 2025 (also referenced as 09 January 2026) that had permitted the appointment of the Survey Knowing Advocate Commissioner without hearing the petitioner.
- The matter is remitted to the learned Additional Civil Judge (Senior Division), Dhenkanal, to adjudicate the petition under Order XXVI Rule 9 of the CPC afresh, ensuring that all parties are given an adequate opportunity of hearing.
- The CMP is disposed of.
Topics: Court Procedure, Land Encroachment, Survey Commissioner