MOST.CHINTA DEVI v. SHRIMATI SHAKUNTALA DEVI & Ors

been filed by the defendant-petitioner against the order dated 25.11.2006 passed by the learned Subordinate Judge IInd, Patna in final decree proceeding of Title Suit No.73/1974 by which the learned court below has rejected pleader commissioner’s report in view of the confidential letter of the then learned District Judge, Patna bearing letter no.270 of 2006 dated 11th September, 2006 informing 2 that the certificate of the learned survey knowing pleader commissioner in support of the valid training acquired by him has not been accepted. Learned senior counsel for the petitioner, referring to the said confidential letter, a typed copy whereof has been annexed as Annexure-4 to the civil revision, submits that the letter was addressed to the learned Munsif II, Civil Court, Danapur in connection with different execution case in which the then learned District Judge had informed the Court that the certificate of training of the said learned pleader commissioner, namely, Mr. Md. Mazharul Haque has not been accepted and, therefore, the court was asked to scrutinise his report and take a decision for confirmation or otherwise of the report of the said pleader commissioner on its merits. Learned senior counsel submits that the letter gave discretion to the court concerned to examine the report and if the same was found correct, the court was at liberty to confirm the same. However, he submits that, by the impugned order, the learned court below has rejected the report of the said pleader commissioner only on the basis 3 of the said confidential letter of the then learned District Judge. Further submission of the learned senior counsel for the petitioner is that in terms of the orders passed by this Court in earlier revision application, the pleader commissioner was appointed by the court and he submitted his report on 29.02.2004. Thereafter, as noticed in the impugned order itself, some clerical and arithmetical mistakes were pointed out by the plaintiff in the report and the learned court below, by order dated

24.11.2005, directed the pleader commissioner to rectify the mistakes and submit a correct report. Thereafter the pleader commissioner corrected the mistakes in the report and re- submitted it on 18.1.2006. However, the learned court below referring to the said confidential letter of the then District Judge and the order dated 24.11.2005 by which the mistakes in the report were noticed, has rejected the report. He submits that in terms of the confidential letter of the District Judge, the learned court below was required to examine the correctness of report submitted by the pleader commissioner on 18.01.2006 independently and thereafter the court below was required to come to a final 4 decision with regard to confirmation or otherwise of the report, if necessary by a reasoned order. Hence, he submits that the learned court below has committed material irregularity in rejecting the report merely on the basis of the said confidential letter and its earlier order completely ignoring and examining the corrected report submitted by the pleader commissioner on 18.1.2006 submitted under his orders, on its own merits. Learned senior counsel for opposite party no.2 in his submission has supported the submission of learned senior counsel for the petitioner. He further points out that the confidential letter was written by the then learned District Judge to the Munsif in respect of a different execution case in which the learned Munsif examined the report on its merit, as directed by the learned District Judge in his confidential letter, and found the report to be correct and confirmed it. He submits that the same approach was required by the learned court below in the present case also. Notice was earlier issued to plaintiff- opposite party no.1, who has also appeared in 5 the case through her counsel whose name appears in the cause list. However, no one appears to assist the Court on behalf of opposite party no.1 and to dispute the contentions made by learned senior counsel for the petitioner and learned senior counsel for opposite party no.2. In the circumstances, after going through the records and after going through the order of the learned Munsif passed in Execution Case No.3/2002 in connection with which the said confidential letter was written by the learned District Judge, this Court finds that the learned court below has failed to exercise its jurisdiction in considering the corrected report of the pleader commissioner filed on

18.1.2006 on its own merits as per liberty granted by the then learned District Judge in his confidential letter. In the circumstances and in absence of any opposition from the side of plaintiff- opposite party no.1, this civil revision application is allowed. The impugned order dated 25.11.2006 is set aside and the matter is remitted back to the court below to consider corrected report pleader commissioner filed on 18.1.2006 on its own 6 merits and pass final order assigning reasons, if necessary, on the same. Since the suit is of the year 1974 and for partition and, as stated by learned senior counsels for the parties, it is at the stage of final decree proceeding, the court below shall pass fresh orders in the light of the order of this Court within one month from the date of receipt/production of a copy of this order after due notice to the plaintiff. B.T. (J. N. Singh, J.)