ROHITESHWAR RAY Vs. KAUSHAL KISHORE

JUDGEMENT

(1.) The petitioner, who is defendant in Title Suit No.104 of 2011, is aggrieved of order dated 19.05.2017 by which the trial Judge has appointed a Pleader-Commissioner.

(2.) Plea urged on behalf of the petitioner is that before framing of issues a Pleader-Commissioner cannot be appointed and, moreso, for collecting the evidence by a party to the suit.

(3.) Title Suit No.104 of 2011 has been instituted for a declaration of the plaintiff's right, title and interest over the suit schedule property and for a decree for demolition of the construction, if any, made over the suit property and for delivery of vacant possession of the suit land to the plaintiff. Initially, the petitioner was debarred from filing written statement by an order dated 15.07.2015. This order was set-aside by this Court in W.P.(C) No.3113 of 2013 and the petitioner was permitted to file the written statement. In his written statement of defence the petitioner has pleaded that he has constructed about 14 rooms over the suit land. At this stage, the plaintiff has filed an application under Order-XXVI Rule 9 CPC for appointment of a Pleader-Commissioner. In the context of the relief sought in the plaint for demolition of any structure made over the suit land, in view of the stand taken by the defendant that he has constructed 14 rooms thereon, the issue on construction, if any, over the suit land thus became a disputed one. Order-XXVI Rule 9 CPC provides that the court if deems proper and necessary for elucidating any matter in dispute may appoint a Pleader-Commissioner to investigate the matter in dispute and submit a report. In view of the pleadings of the parties, before the suit goes for trial, in my opinion, the trial Judge has adopted a correct procedure for ascertaining the extent of construction made over the suit land.