AMIYU BHUSAN Vs. AHAMMAD ALI

JUDGEMENT

(1.) This revision by the defendant arises out of an order of the trial court refusing defendant's application dated 4-9-1985 for rejecting the report of the pleader commissioner dated 3-5-1984.

(2.) In the suit for permanent injunction restraining defendant petitioner from interfering in any way in the possession of the plaintiff opposite party over the disputed land, the latter filed an application for ad interim injunction which was registered as Misc. Case No. 75 of 1984. An ex parte ad interim injunction was granted by the trial court. Though the date of appearance was fixed to 10-5-1984, petitioner had entered appearance on 26-4-1984. Without service of copy of the petition, plaintiff filed an application on 1-5 1984 in the Misc. Case for deputing a pleader commissioner to inspect the disputed property on the allegation that violating the order of injunction the defendant is constructing a wall over the, disputed land which would completely close the passage of the plaintiff. As the case was not posted to that date an advance petition was filed for bringing the record for consideration of the petition which is urgent in nature. The learned Munsif directed issue of a writ to a pleader commissioner on the same day. From the record, it is seen that a writ was issued in the form provided for such a writ, under Order 26, C.P.C. The commissioner went to the spot, made local inspection and submitted a report. The objection of the petitioner is also indicative of the fact that he treated the report to be one under Order 26, Rule 10, C.P.C.

(3.) The trial court after hearing both parties held that without examining the commissioner, report cannot he treated as a part of the evidence, and therefore, the prayer of the petitioner to reject the same is not acceptable. Mr. S.S. Mohanty, the learned counsel for the petitioner submitted that the impugned order is not sustainable since no notice of the issue of commission has been served on the petitioner. Miss. Sujata Das, the learned counsel for the opposite party submitted that no interference is called for since the defendant shall get enough opportunity to assail the report as has been found by the learned Munsif in the impugned order.