SADASHIV MANDAL vs DILIP KUMAR CHATTERJEE

The petitioner is aggrieved of order dated 17.09.2012 passed in Title Suit No.22 of 2005 by which report of the Pleader Commissioner has been

accepted by the trial judge.

The petitioner is defendant no.1 in Title Suit No.22 of 2005.

The suit was instituted for a decree of declaration of the plaintiff’s title over suit scheduled property on adjudication, and delivery of khas

possession of the suit property to the plaintiff after dispossessing defendant no. 1 from the suit scheduled property. During pendency of the suit an

application under Order 26 Rule 9 CPC was filed and pursuant to the court’s order a report was submitted by the Pleader Commissioner. The

defendants have filed objection to the Pleader Commissioner’s report; one of the objections was that there already has been two reports on

record.

Apprehension raised by the defendants is that inspite of objections by them since the Pleader Commissioner’s report has been accepted by the

trial court, it may seriously prejudice their case on merits.

Rule 9 of Order 26 CPC provides that if the court is of the opinion that for elucidating any matter in dispute local investigation by a Pleader

Commissioner is necessary, an order under Order 26 Rule 9 CPC shall be made by the court. Apparently, the report received from the Pleader

Commissioner would not be a substantive evidence nor conclusive proof of a fact. At the time of final hearing in the suit it shall remain open to the

petitioner; during the trial the parties may lead evidence oral as well as documentary, to plead that the Pleader Commissioner’s report so received

by the court shall not decide the defendant’s claim.

In view of the aforesaid, without commenting upon the worth of the Pleader Commissioner’s report, the writ petition stands disposed of with a

clarification that the defendants may lead evidence to the contrary during the trial.