PITAMBAR NATH Vs. GOURANG CH. PATI.

JUDGEMENT

(1.) The present petitioner being aggrieved with the order dated 23.07.2011 of the learned Civil Judge (Jr. Divn.) Salipur, in C.M.A. No. 79 of 2010 arising out of Civil Suit No. 17 of 2010 has approached this Court for quashing the said order at Annexure-5. The opposite party of this writ petition as plaintiff filed a civil suit in the Court of learned Civil Judge (Jr. Divn.), Salipur against the defendant who is the present petitioner in this writ petition for permanent injunction restraining the defendant from creating disturbances over the peaceful possession of the suit Plot No. 4070/4987 appertaining to Khata No. 721 in Mouza Jhadeswarpur which stands exclusively recorded in his name. It is also the case of the plaintiff that the defendant has his homestead Plot No. 4070 which adjoins to the North of the suit plot, but with an oblique motive of grabbing the suit plot attempted to encroach the suit land for which the suit was filed for permanent injunction.

(2.) Perusal of the materials on record further indicates that on the prayer of the plaintiff-petitioner a restraint order was passed by the Court below in the Interim Application No. 18 of 2010 and the learned Court directed the parties to maintain status quo in respect of the suit property, but later on alleging violation of the said order of the Court, a petition was filed under Order 39, Rule 2(A) of the Civil Procedure Code (hereinafter referred to as "C.P.C.") which was registered as C.M.A. No. 79 of 2010. It was alleged that the defendant-opposite party in the said suit has made constructions over the suit land in violation of the order of status quo. Another petition was filed by the defendant in the said suit under Order 26, Rule 9, of the C.P.C. for appointment of a Civil Court Commissioner to report about the length and breadth of the constructions over the suit Plot No. 4070/4987 over an area of Ac. 0.20 dec. and to measure out the same. Learned Civil Judge (Jr. Divn.), Salipur after hearing the parties by the impugned order at Annexure-5 allowed the said prayer and a Civil Court Commissioner was appointed for making local investigation in respect of the suit schedule land and to submit his report with regard to the location of the suit Plot No. 4070/4987. The legality of the said order under Annexure-5 is assailed in this writ petition.

(3.) The power to appoint a Commissioner under Order 26, Rule 9 of the C.P.C. is wide and discretionary. It is also the settled position of law that the report of the Commissioner under Order 26, Rule 10 of the C.P.C. is a piece of evidence which can be rebutted by other evidence. Thus, appointment of a Commissioner would depend upon the nature of the dispute and the facts and circumstances of each case.