The single judge bench of Justice Sunil Dutta Mishra of the Patna High Court in the case of Asraf Ansari, Son of Late Kamrujama Ansari, Resident of Village- Nuaon, P.S.- Nuaon, District- Kaimur (Bhabua). vs Jitendra Prasad, Son of Ram Charan Sah, Resident of Village- Nuaon, P.S.- Nuaon, District- Kaimur (Bhabua). held that the Pleader Commissioner cannot be appointed for verifying the truthfulness of the statement of the witnesses.
Brief Facts of the Case
The factual matrix of the case is that the respondent filed the suit for the declaration of title and possession of the suit land. Thereafter, the Petitioner filed the petition for the appointment of the pleader commissioner to inspect and submit a report on whether there is pakka room, hand pump, tree, and a shop over a suit land. It was asserted by the Petitioner that PW-2 denied the same in the cross-examination, however, it is essential to bring the true facts on record. The said petition was rejected which results in the present application.
Contentions of the Petitioner
The learned counsel appearing on behalf of the Petitioner contended that the petition was not filed on the basis of the cross-examination of PW-2. The Learned counsel relied upon the judgment titled Ram Shekhar Singh Vs. State Bank of India & Ors.
Contentions of the Respondents
The learned counsel appearing on behalf of the respondents contended that both the parties are claiming possession and title over the suit property which is to be decided on the basis of oral and documentary evidence produced by the parties before the court.
It was furthermore contended that the local commissioner cannot be appointed to gather evidence on record and to challenge witness testimony, as is well established by law.
Observations of the court
The Hon’ble Court observed that the trial court may, suo motu, appoint a commissioner to produce a report without requiring an application if it determines that any subject needs to be clarified or explained while the trial is ongoing and before the verdict. Order 26 Rule 9 of CPC's application is very limited.
It was furthermore observed that the Court will typically appoint a Commissioner when necessary given the specific facts of the case, especially when there is a dispute over the demarcation of the land or an encroachment conflict. Only the evidence will be used to determine the issue of possession.
The Hon’ble court relied upon the judgment titled Padam Sen and Another Vs. The State of U.P.
Based on these considerations, the hon’ble court agreed with the order passed by the court below.
Decision of the Court
With the above direction, the hon’ble court dismissed the application.
Case Title: Asraf Ansari Vs Jitendra Prasad
Coram: Hon’ble Mr. Justice Sunil Dutta Mishra
Case No.: Civil Miscellaneous Jurisdiction No.748 of 2018
Advocate for the Petitioner: Mr. Om Prakash Upadhyay, Advocate
Advocates for the Respondent: Mr. Dhaneshwar Prasad, Advocate Mr. Satyendra Pandey, Advocate
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