Shankar Kumar Sarkar vs Smt. Umesh Bala Devi

Shree Chandrashekhar, J.—Aggrieved by order dated 14.07.2008 in Title Suit No. 66/01 whereby, application for appointment of a Pleader Commissioner has been rejected, the present writ petition has been filed.

Title Suit No. 66/01 was instituted for a declaration of right, title and interest of the plaintiff over Schedule �A� and Schedule �B� properties and for confirmation of possession of the plaintiff over the entire suit properties. The petitioner is the defendant in the title suit. The petitioner contested the suit disputing that he, with a dishonest intention, was trying to disturb the lawful possession of the plaintiff over Schedule �A and Schedule �B� properties. It was asserted that the plaintiff is trying to grab the property belonging to the defendant. In the pending suit, an application was filed under Order 26, Rule 9 CPC for appointment of a Pleader Commissioner. The said application has been dismissed vide impugned order dated 14.07.2008.

The learned counsel for the petitioner submits that appointment of a Pleader Commissioner was necessitated in the wake of the illegal encroachment by the plaintiff over Schedule �A� property and therefore, in terms of Order 26, Rule 2 CPC, the Court should have, in order to elucidate the matter, ordered appointment of a Pleader Commissioner.

A perusal of application under Order 26, Rule 9 CPC discloses that the petitioner/defendant raised a plea that during pendency of the suit, the plaintiff illegally constructed a tin-shed over southern side of Schedule �A� property. On such allegation, the plaintiff filed application for appointment of a Pleader Commissioner for measurement of the suit land. It appears that in the title suit the defendant filed written statement and counterclaim however, the defendant has not filed an application seeking injunction. It is also not in dispute that the petitioner has, in his counter-claim, sought amendment for a decree for recovery of possession in respect of Schedule �A� property. Both the parties have staked title over the suit properties. In the above situation, the parties are required to lead evidence and in the garb of an application under Order 26, Rule 9 CPC, the defendant cannot seek appointment of a Pleader Commissioner for creating evidence. It further appears that the said application was filed when the suit was posted for hearing.

Considering the aforesaid facts, I find no infirmity in impugned order dated 14.07.2008 and, accordingly, the writ petition is dismissed.