Orissa High Court: In the present case, the petitioner challenged the impugned order dated 20-2-2024 of the Civil Judge, Junior Division, Nimapara, whereby a Pleader Commissioner was appointed in terms of Order 39 Rule 7 of the Civil Procedure Code, 1908 (‘CPC’). A Single Judge Bench of R.K. Pattanaik, J., opined that the report submitted by a Pleader Commissioner, appointed under Order 39 Rule 7 CPC for property inspection, could be used to determine interim applications, like those for injunctions but it could not be taken as evidence in deciding the merits of a civil suit. The said report was only meant to assist the court in limited matters such as inspection, preservation, or detention of the property.
Background:
The petitioner filed a civil suit seeking a permanent injunction to restrain the defendants from constructing any structure on the suit property, stating they had no legal claim to it. He alleged that the defendants were relying on a void gift deed and subsequent mutation to assert ownership, in respect of the suit land, which was in possession of the petitioner and his family and was used for cultivation.
In their defence, the opposite parties argued that the suit land had been gifted for the purpose of establishing a school and that opposite party (Defendant 2), who originally owned the land, had voluntarily executed the gift deed in favour of the institution.
The petitioner also sought a temporary injunction to stop any construction activity until the final decision in the case. During the pendency of the interim application, the opposite parties requested the trial court to appoint a Pleader Commissioner under Order 39 Rule 7 CPC to inspect the suit land and report whether it was indeed being used as a school or remained a paddy field, as claimed by the petitioner. The trial court allowed the interim application and appointed the commissioner.
Aggrieved by this order, the petitioner approached this Court, arguing that such an appointment was akin to collecting evidence on behalf of the opposite party, which was not legally permissible.
Analysis and Decision:
While addressing the petitioner’s concern, the Court referred to Amiya Bhusan Tripathy v. Ahammad Ali, 1986 SCC OnLine Ori 58, where it was held that reports from commissioners were only valid for limited purposes and could not be taken as an evidence.
The Court reiterated that Order 37 Rule 7 CPC allows for appointment of a commissioner only to inspect or preserve the condition of the property during a pending suit, particularly while dealing with injunction applications. The report produced under this provision did not carry evidentiary weight comparable to reports under Order 26 CPC, which permitted appointment of a commissioner for recording evidence.
In the present case, there was a factual dispute where the petitioner maintained that the land was agricultural (a paddy field), while the defendants asserted the existence of a functioning school. The Court found it reasonable to appoint a Pleader Commissioner solely to resolve this interim question related to the injunction and not for the purpose of final adjudication.
The Court concluded that while the commissioner’s report could not be treated as formal evidence in the main suit, its limited use for deciding interim relief was appropriate. The appointment did not amount to evidence gathering on behalf of the opposite parties, and the lower court had acted within its jurisdiction.
Thus, the petition was dismissed, with the Court reaffirming that a Pleader Commissioner’s report under Order 39 Rule 7 CPC was only for inspection related purposes and not to be treated as evidence.
[Ramakrushna Nayak v. Manoj Kumar Behera, 2025 SCC OnLine Ori 2326, decided on 23-5-2025]
Advocates who appeared in this case :
For the Petitioner: S.K. Mishra, J. Pradhan
For the Opposite Parties: S.K. Dash
