IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6096 of 2010 1. Dinesh Kumar Ojha, S/O Late Surya Deo Ojha 2. Dharmenra Ojha 3. Shailesh Ojha @ Shailes Kumar Ojha 4. Shatish Ojha @ Satish Chandra Ojha Sl. No. 2 to 4 are sons of Dinesh Kumar Ojha R/O Vill.- Kismat Barwa, Post- Ashao, P.S.- Andar, Distt.- Siwan. ……… Defendants / Petitioners. Versus 1. The State Of Bihar, through Chief Secretary, Govt. of Bihar, Patna. 2. Akhil Nand Ojha, S/o Late Suryadeo Ojha, R/O Vill.- Kismat Barwa, Post- Ashao, Post- Andar, Distt.- Siwan. ……… Respondents. For the petitioners : Mr. Ranjeet Kumar, Advocate. Mr. Sushant Praveer, Advocate. Ms. Binita Singh. For the State : A.C. to A.A.G.-III. ----------- 3. 27.10.2010 1. Heard learned counsel for the defendants- petitioners, learned counsel for the State and learned counsel for plaintiff-respondent no. 2. 2. This writ petition has been filed by the defendants-petitioners challenging order dated 25.02.2010 by which Additional Sub-judge-I, Siwan allowed the application of plaintiff-respondent under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure filed in Title Suit No. 309 of 2009. 3. The aforesaid title suit was filed by the plaintiff-respondent no. 2 for demarcation of the suit house in which some portions were claimed to have been constructed by him. Defendants appeared in the said suit and filed their written statement contesting the claim of the plaintiff. 4. However, before framing of the issues, - 2 - plaintiff filed an application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure on 23.02.2010 for appointment of a pleader commissioner. A rejoinder to the said interlocutory application was filed by defendant on 24.02.2010. The said interlocutory application has been allowed by the court below vide its impugned order mentioned above merely on the ground that the plaintiff has stated that the nature of the suit demanded appointment of a pleader commissioner to look into the matter regarding his claim of construction of a portion of the house in question sought to be demarcated. 5. The provision of law namely Order XXVI Rule 9 of the Code of Civil Procedure is very clear and it provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute it may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. In the said circumstances, first issues have to be framed to see what are the actual matters in dispute and thereafter if from the evidence adduced by the parties it appears to the court that local investigation is required for the purposes of elucidating in the matter in dispute it can definitely appoint a pleader commissioner for the said purposes. 6. But in the instant case, even the issues not having been framed, it is not clear what are the real matter in - 3 - dispute on which the evidence was required. The report of a pleader commissioner in such matter is also a piece of evidence to be considered by the court and that can be done only after the issues are framed. 7. In the said circumstances, this writ petition is allowed and the impugned order dated 25.02.2010 is hereby set aside and the court below is directed to proceed with the suit after framing of issues and if from the evidence of the parties it feels any difficulty in elucidating any matter in dispute it must appoint a pleader commissioner for the said purposes under the provisions of Order XXVI Rule 9 of the Code of Civil Procedure. Sujit (S.N. Hussain, J.)