Pitambar Jena & Anr. vs Gouraga Chandra Jena & Ors.

Savitri Ratho, J. Registry has pointed out that requisites for issuance of fresh notice on Opposite Parties No.3, 4 and 5 by Speed Post with A.D. have not been filed.

This CMP has been filed challenging the order dated 10.08.2016 passed in C.S. No. 117 of 2014 by the learned Civil Judge (Junior Division), Chandikhole (Annexure-5), allowing the application filed under Order 26, Rule 9 read with Section 151 of CPC by the defendants for deputing a Pleader Commissioner to investigate/inspect the spot and submit a report by answering the question put by them.

While issuing notice on 24.01.2017, this Court had stayed further proceedings in C.S. No. 117 of 2014.

On 14.11.2017, this Court had directed that fresh notice by Speed Post with A.D. would be taken for issuance of notice on Opposite Parties No.3, 4 and 5 within one week.

When the matter was listed on 07.08.2026, the Registry had pointed out that the requisites have not been filed but the matter is adjourned to today as Ms. S.S. Deo, learned counsel for the Opposite Parties No.1 and 2 wanted to obtain instructions if the suit is pending. On the said date, no counsel had appeared on behalf of the Petitioners.

Today, Mr. S.S.K. Nayak, learned counsel appears on behalf of the Petitioners and submits that notice on Opposite Parties No.3, 4 and 5 may be dispensed with at the risk of the Petitioners as they are not the contesting defendants in this case and the Defendants No.1 and 2 who had filed this application in the learned trial Court are the Opposite Parties No.1 and 2 who are represented by counsel.

With the consent of the parties, the case is taken up for final disposal.

Civil Suit No. 117 of 2014 was filed by the Petitioners-Plaintiffs against the Opposite Parties-Defendants for mandatory injunction and demarcation. The case of the Petitioners-Plaintiffs is that Plot No. 2290, area Ac.0.07 dec. 283 sq.ft. and Plot No. 2294, area Ac. 0.09 dec. 364 sq.ft. under Khata No. 342 which are suit plots have been purchased land by the plaintiffs. Plots No. 2295 and 2289 are the plots of Defendants No.1 and 2 which is adjacent to suit plots. The plaintiffs have constructed a pucca building over the suit plot and they have also constructed a bathroom with Tin Chhapara. On 14.08.2014, the Defendants No.1 and 2 were trying to construct a boundary encroaching the suit land. When the plaintiffs obstructed, they did not listen. Hence the plaintiffs filed the suit for mandatory injunction and demarcation against the defendants.

Defendants No.1 and 2 filed their written statement denying all the averments made in the plaint. According to the defendants, the plaintiffs have constructed their latrine by encroaching their land about 358 sq. links towards eastern side of their land. While defendants raised objection regarding excess possession of land then the plaintiffs have filed the case against them by making false averments. In the suit the defendants also filed counter claim praying for demarcation and also for delivery of possession. When the suit was pending, the defendants filed an application under Order 26, Rule 9 of CPC for deputing a Pleader Commissioner to inspect the spot and submit his report regarding the question given in the said petition. In that application the plaintiffs filed their objection stating that this petition is not maintainable because only for collecting the evidence and lingering the suit, the defendants have filed this application. After hearing both the sides, learned trial court allowed that application.

The learned Civil Judge (Junior Division), Chandikhole has however allowed the application stating that the question regarding existence of road, boundary wall on the western side of the suit plot and residential house of the plaintiff over the suit land is in doubt for which the local investigation is necessary and deputation of a Pleader Commissioner will be proper for elucidating the matter in dispute and to give the answers put by the defendants in the petition.

Mr. S.S.K. Nayak, learned counsel for the Petitioners submits that the suit had been filed for removal of unlawful construction by issuing a mandatory injunction and for demarcation of the suit land. After filing of written statement and counter claim by Defendants No.1 and 2 and before the suit was posted for evidence, an application under Order 26, Rule 9 read with Section 151 of CPC was filed by Defendants No.1 and 2 for deputing a Pleader Commissioner to investigate/inspect the spot and submit a report by answering the question put by the defendants in the application. The questions related to existence of road and old boundary wall, construction of a new boundary wall and its distance from the old boundary wall and the approximate age of the new boundary wall, regarding the existence of residential house of the Defendants and description of the house and existence of a residential building on the said plot.

Objection to the petition was filed by the plaintiff stating that an advocate can make local inspection but the proposed questions put by the defendants cannot be answered by the Pleader Commissioner. The Pleader Commissioner is not an expert to recognize a new or old construction of the boundary and the distance of boundary cannot be determined by the Pleader Commissioner as he is neither an expert on measurement. This can only be done by a survey knowing commissioner who can measure the distance of boundary wall. Hence, the appointment of a Pleader Commissioner will not in any way help the Court for the purpose of proper adjudication of the dispute.

Mr. S.S.K. Nayak, learned counsel for the Petitioners submits that the Pleader Commissioner is not qualified to answer the questions put in the application of the defendants. He further submits that if at all a Survey Knowing Commissioner could have answered the questions which had been put by the defendants in their application. But the learned court below without dealing with the objection of the plaintiffs has merely noted down the objection and allowed the application without giving proper reasons.

Ms. S.S. Deo, learned counsel for the Opposite Parties No.1 and 2 supports the order and submits that since the application has been allowed, no prejudice would be caused to the plaintiffs if the Pleader Commissioner goes to the spot and after inspection answers the questions put in their petition.

More than 10 years have elapsed since the impugned order was passed. Although further proceedings in the suit had been stayed, but it is not known as to what is the situation over the suit land now. That apart, this Court finds merit in the submission of Mr. S.S.K. Nayak, learned counsel for the Petitioners that Pleader Commissioner is not equipped to answer the questions which have been put by the defendants in their application. Hence, the impugned order is set aside.

The CMP is accordingly allowed.

However, liberty is granted to the defendants to file a fresh application which shall be considered in accordance with law.

Interim order passed earlier stands vacated and Misc. Case No. 2009 of 2016 stand disposed of.

Urgent certified copy of this order be granted on proper application.