ASARFI RAI v. RAM SEWAK RAI & Ors.

When Mr. Nishant Choudhary, learned counsel for the petitioner, was asked to explain this aspect he has taken this Court not only to the pleadings but also on case laws to buttress his submission that in the facts of this case the appointment of Pleader Commissioner was a necessity. He has explained that it was necessary to find out whether the plot was already amalgamated and as to whether there was a house standing thereon as also what was the total area. In the opinion of this Court all 2 these aspects were well capable of being adduced in evidence by the defendant petitioner himself either through his own expert witness who has an idea of measurement or even getting his own Pleader Commissioner who could have deposed without there being any order of the Court in his favour. There is no requirement in law that each and every prayer of the parties in a suit for appointment of Pleader Commissioner under Order 26 Rule 9 C.P.C. must be allowed irrespective of the requirement of the suit.

To that extent, the reliance placed by the learned counsel on the decision of Madras High Court in the case of Ponnusamy Pandaram vs. The Salem Vaiyappamalai Jangamar Sangam, reported in AIR 1986 Madras 33, is wholly misconceived because there only discussion is with regard to evidentiary value of the report Pleader Commissioner. Similarly the facts noticed in the other decision of Madras High Court in the case of Vaithinattar & anor. Vs. Sakkubai Ammal, reported in AIR 2004 Madras 419, would clear it out that there the High Court itself in 3 course of hearing the second appeal on perusal of the judgment of both the courts had come to a specific finding that the dispute of half cent of land with the allegation of demolition and encroachment could have been effectively gone into, had the court been equipped with the report of the Pleader Commissioner. Obviously the ratio that was laid down in Vaithinattar case (supra) will not apply in the facts of the present case.

Law in this respected is well settled that it is for the court to find out in a particular case as to whether there is requirement of the Pleader Commissioner or not. As held above, the court below has noted specifically in the impugned order that the defendant petitioner has already adduced his evidence and thereafter if the application for appointment of Pleader Commissioner was pressed, it would really amount to collecting evidence for the defendant-petitioner especially when the court itself does not require assistance in this regard. Such satisfaction having been 4 recorded in an elaborate manner by the court below that there is no requirement for appointment of Pleader Commissioner, the reasonings for rejection of the prayer of the petitioner cannot be set aside by this Court in exercise of its revisional power under Section 115 of the Code of Civil Procedure. Obvious result therefore would be that this Court must uphold the impugned order as this Court does not find any jurisdictional error in the same.

However, there seems to be some force in last submission of the counsel for the petitioner that as a matter of fact the defendant petitioner really prejudiced if now they are not allowed to lead evidence on the point on which they expected the Pleader Commissioner to be appointed. The counsel explains that as a matter of fact such prayer for appointment of Pleader Commissioner was made at the beginning of adducing of evidence by the defendant petitioner and that is how an application was filed way back on 29.9.2004 which remained pending for one reason or 5 other and has been ultimately disposed of on

18.9.2008. He would, therefore, submit that even if this Court is not inclined to interfere with the impugned order and issue a direction for appointment of Pleader Commissioner at least this much leave be given to the petitioner to file an application before the court below to allow the petitioner to reopen his evidence which has already been closed for leading evidence on this aspect. In the opinion of this Court such prayer of the petitioner is quite fair and reasonable and must be allowed. This Court would, therefore, direct the court below to reconsider the prayer of the petitioner as with regard to reopening the evidence of the defendant only on the point on which the petitioner wanted appointment of Pleader Commissioner. The counsel petitioner, however, assures this Court that on this pretext the petitioner would not keep the matter pending ad-infinitum and infact complete the evidence within a period of one month from the date he is allowed to 6 do so. That being the undertaking of the petitioner, the apprehension of the suit being kept pending at the instance of the petitioner is also ruled out. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/