Writ petition by a defendant in a title suit challenging the trial court's order disposing of an objection to a Pleader Commissioner's report. The High Court held it found no legal flaw as the trial court reserved the issue for final argument.
Writ application dismissed.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19126 of 2010
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====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER
The contesting defendant of Title Suit no. 46 of 1998 has filed the present writ petition aggrieved by the order dated 27.08.2010 passed by the trial court disposing of the objection (Annexure-2) filed by the defendant to the report submitted by the
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Survey Knowing Pleader Commissioner. In the light of the rejoinder filed thereto on behalf of the plaintiff-respondent the trial Court observed as under in the order:-
“Perused the case record, report of SKPC, evidence of SKPC, as PW7, petition filed by the defendant dated 9.4.2007 and its rejoinder filed by the plaintiff, ,I feel it proper that the merit of the report of Pleader Commissioner will be considered at the time of argument, for the ends of justice. Accordingly the petition filed on 9.4.07 on behalf of the defendant is disposed of.”
The counsel for the petitioner has submitted that in all fairness the trial court ought to have considered the objection filed by the petitioner to the report which was not scientifically prepared by the court of the scheduled land inasmuch as the same was not measured from a fixed point. The trial Court in the order has observed that the aforesaid objections shall be considered at the time of argument of the case. On query, Mr. verma, informs the court that the case is now fixed for argument.
Order 26 Rule 9 provides for constitution/ appointment of Commissioner to make local investigation and to report if the court is satisfied that such ascertainment shall be helpful in resolving the real dispute between the parties. Discretion in this regard has been vested in the court. That apart,
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in the order impugned the court itself has observed that if need be the request made in the application shall be considered by the court at the time of argument. The stage has not reached.
This Court, in view of the above, does not find any legal flaw in the order meriting interference leaving it to the defendant(s) to raise submission before the court during argument of the case for consideration.
The writ application is dismissed.
(Kishore Kumar Mandal, J)
Shyam/-
U
2 issues framed by the court
Whether the trial court erred in not immediately considering the objection to the Survey Knowing Pleader Commissioner's report before the final argument of the suit.
Whether the High Court is bound to interfere on a writ petition when the trial court expressly reserved the plaintiff's objection for consideration during the final argument.
Ram Guljar Mahto
Madan Mohan Shahi
Shatrughan Prasad Narain Shahi
Shakuntala Devi
Manjula Rai
Asha Kumari
KISHORE KUMAR MANDAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
