PRADIP KUMAR ASHE Vs. NIKHIL CHANDRA ASHE

JUDGEMENT

(1.) Order dated 28.9.2010 passed by the learned District Judge, Balasore in RFA No.103 of 2008 allowing the defendants-appellants' petition u/o 29 rule 9, CPC for deputing a Civil Court Commissioner to make local investigation is the subject matter of challenge in this writ petition.

(2.) The undisputed facts are that one of the issues, amongst others, is whether the disputed building stands on one or the other plot as contended by the parties. A private Commissioner taken by the plaintiff during the pendency of the suit and the Commissioner's report with regard to the location of the building was accepted by the trial Court. The trial Court decreed the suit against which the defendants filed the regular First Appeal in question. The defendants-appellants filed a petition u/o 26 rule 9, CPC for deputation of a Civil Court Commissioner for local investigation for determining about the existence of the building in question on one plot or the other as claimed by the parties.

(3.) Without going into the question whether the evidence on record coupled with the report of the Commissioner submitted during the trial was sufficient to determine the question or not, straightway the appellate Court has allowed the petition and directed for deputation of a Civil Court Commissioner on the ground that there is no bar for deputation of a second Commissioner even though the report of the previous Commissioner is available and further that by deputation of the Commissioner the plaintiff-respondent will not be prejudiced,