The Orissa High Court has upheld an order appointing a pleader Commissioner, and observed that the report of the Commissioner under Order 39 Rule 7 CPC may not be treated as evidence in the suit, but to tackle the issue at hand while considering an application for injunction.

The Petition before the High Court was filed by the petitioner assailing the impugned decision of the Civil Judge for having appointed a Pleader Commissioner in terms of Order 39 Rule 7 CPC at the behest of the opposite parties.

The Single Bench of Justice R.K. Pattanaik held, “The report of the Commissioner under Order 39 Rule 7 CPC may not be treated as evidence in the suit but to tackle the issue at hand, while considering an application for injunction moved by the petitioner, such an exercise by learned Court below cannot be said to be wrong or erroneous.”

Senior Advocate S.K. Mishra represented the Petitioner while Advocate S.K. Dash represented the Opposite Party.

Factual Background

The petitioner was the plaintiff in the suit instituted for a relief of permanent injunction against the opposite parties in respect of the suit scheduled property. The Petitioner also sought no interference in his possession of the same. By pleading that the opposite parties did not have any right title, interest and possession over the suit schedule property, it was claimed by the petitioner that he was being threatened by them, who were contemplating raising illegal construction on the strength of a void gift deed. It was further claimed that the opposite parties were creating disturbance over and in respect of the suit land, which was in possession of the petitioner and his family and was being used for cultivation.

The Petitioner had also filed an I.A. for a direction to the opposite parties not to take up any construction over the suit land till the disposal of the suit. In the said application, the opposite parties moved the application under Order 39 Rule 7 CPC to depute a Pleader Commissioner to inspect and report the topography of the suit land. The Civil Judge allowed the inspection to be held by a Commissioner and to report back whether any school building was situated over the suit plot. The said decision was questioned by the petitioner on the ground that any such attempt with the appointment of the Pleader Commissioner would amount to a collection of evidence through the process of the Court for and on behalf of the opposite parties, and the same was impermissible under law.

Reasoning

The Bench explained, “The inspection of a Commission as per Order 39 Rule 7 CPC is obviously for a limited purpose, either for detention or preservation or inspection of a suit property. A report of the Pleader Commissioner received by the Court is often utilized in reaching a particular decision. Such a report may still be said to have evidentiary value, unlike the one received from the Survey Knowing Commissioner in view of Order 26 Rule 10 CPC. Although such a provision is absent in Order 39 CPC but it has to be accepted by a Court and even relied upon by one of the parties to the suit. In strict sense, a report of Pleader Commissioner may not be evidence similar to the provision under Order 26 CPC, but in a given circumstance, it is treated so, though, for a limited purpose.”

Coming to the facts of the case, the Bench noted that the dispute lies regarding the use and utility of the suit land either for cultivation purposes or having a school over the same. “Since, it is denied by the petitioner claiming that there is no school building over the suit land and the opposite parties contradict the same, for a limited purpose, to ascertain its existence or otherwise, the Court is of the considered view that appointment of the Pleader Commissioner is the right way to deal with the situation”, the Bench said.

Holding that the impugned order called for no interference, the Bench said, “It is at the cost of repetition observed that the report of the Pleader Commissioner is, though, necessary to take a decision, while dealing with the I.A. filed by the petitioner under Order 39 Rules 1 and 2 CPC and for opposing construction over the suit land by the opposite parties but is to be utilized for the limited purpose as proposed and not beyond.”

Thus, the Bench dismissed the Petition.

Cause Title: Ramakrushna Nayak v. Manoj Kumar Behera and another (Case No.: CMP No.200 of 2024)

Appearance:

Petitioner: Senior Advocate S.K. Mishra, Advocate J. Pradhan

Opposite Parties: Advocate S.K. Dash

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Orissa High CourtJustice R.K. Pattanaik

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.