ALEKH PRADHAN Vs. BHRAMAR PAL

JUDGEMENT

(1.) The impugned order enables the plaintiffs, opposite parties in this case, to examine a pleader-surveyor as plaintiffs' witness whose survey report has already been filed in the court below. On 2-9-77 when the suit was part-heard and adjourned to 6-9-77 for examining witnesses, the plaintiffs filed a petition praying for deputing a survey-knowing Commissioner to measure the disputed area. A copy of that petition had been served on the defendants, the petitioners in this case. That petition could not be disposed of on that day and was taken up for consideration on 6-9-77. On 6-9-77 the court examined further witnesses for the plaintiffs, but rejected the said petition. While rejecting that petition it mentioned in the order sheet that the plaintiffs were at liberty to take out a private Commissioner for the above purpose and may submit his report in court within two days. The plaintiffs thereafter took a pleader-surveyor for the measurement of the disputed area, and his report was submitted on 12-9-77 within the extended period allowed by the court. On 15-9-77 the plaintiffs filed a petition to enable them to examine that survey-knowing advocate in that suit. The court by the impugned order has allowed the said petition.

(2.) Mr. Das, the learned counsel for the petitioners contends that the court, after rejecting the prayer of the plaintiffs on 6-9-77 for directing a survey-knowing Commissioner to measure the disputed area, could not have allowed the plaintiffs to examine the private pleader-surveyor at this stage of the suit. Mr. Das further states that the court acted illegally in asking the plaintiffs to take a private Commissioner to measure the disputed area after rejecting the plaintiffs' previous application dated 2-9-77 for appointing a survey-knowing Commissioner for that work. It is incorrect to state that the court below at any point of time asked the plaintiffs to take a private Commissioner in this case. While rejecting the aforesaid petition dated 2-9-77 of the plaintiffs for appointment of a survey-knowing Commissioner by the court, the court merely observed that the plaintiffs were at liberty to take a private Commissioner for that purpose. Therefore, the court never asked or gave any direction to the plaintiffs in this matter. After the pleader-surveyor did the measurement, his report was submitted in the court and after the submission of the said report the plaintiffs made a prayer to the court to allow the said pleader-surveyor to be examined as a witness on behalf of the plaintiffs. The court on a consideration of the facts and circumstances of the case as mentioned in the impugned order has allowed the said prayer. In this Civil Revision against the said order I have at first to see if the court was legally competent and had the jurisdiction to pass the said order or not. Sub-rule (4) of R. 2 of O. XVIII in the amended Civil P. C. is as follows :

(3.) Mr. Das contends that the court was not legally justified in allowing the plaintiffs to examine this witness after rejecting the plaintiffs' prayer to appoint a court surveyor for that work and after closing the hearing of the case on 6-9-77. It appears from the order sheet of the suit that the court did not entertain the plaintiffs' prayer to appoint a court surveyor for the job at that time as it considered that by doing so the disposal of the old suit would be very much delayed. While rejecting that prayer it merely expressed that the plaintiffs might get that work done by a private Commissioner if they so desired within only a very few days allowed by the Court. So whatever order on this matter was passed on 6-9-77 was, as I find, actuated by a desire to dispose of the old suit within a short time. So one cannot question the legality of the said order, nor does the order appear so patently improper as to require interference in revision on assessment of facts in a matter purely within the legal competence and discretion of the court.