IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.34 of 2008 ---- Sheikh Manjoor Ali son of Late Navidad Hussain Resident of Village- Sripur, P.O.- Sripur, P.S. Sugauli, District- East Champaran. --Defendant-petitioner. Versus 1. Most. Parvati Devi wife of Jagdish Sah, Resident of Village-Fulwaria, Ojha Tola- Chapwa, P.O.- Chapwa, P.S.-Sugauli, District-East Champaran. -- Plaintiff-Opposite Party 1st Set. 2. Sheikh Nabidad Hussain (deceased). 3. Sheikh Maqbool Ahmad 4. Sheikh Amanullah Serial No.3 and 4 are sons of Nabibad Hussain deceased Resident of Village-Sripur, P.O.-Sripur, P.S. Sugauli, District- East Champaran. 5. Naina Khatoon daughter of Nabidad Hussain deceased wife of Mustafa Kamal, resident of Village- Watganj, P.S.-Pipra- Kothi, P.O. Pipra, District-East Champaran. 6. Hasbun Nisa daughter of Nabidad Hussain deceased wife of Sheikh Rajullah of Village- Watganj, P.S. Pipra Kothi, P.O. Pipra, District- East Champaran. 7. Sadru Nesa daughter of Nabidad Hussain wife of Sheikh Noorul Hoda of Village-Jatwa, P.S.Banjaria, P.O.-Motihari, District- East Champaran. -- Defendants 1st Party-Opposite Parties 2nd Set. 8. Bihar Sarkar through Collector East Champaran at Motihari. 9. Anchal Adhikari Sugauli, P.O.& P.S.-Sugauli, District- East Champaran. -- Defendants 2nd Party- Opposite Party 3rd Set. ------ For the petitioner : Mr. Suman Kumar, Advocate For the opposite parties : None. ---- 03. 27.10.2009 Heard learned counsel for the petitioner. 2. This civil revision has been filed by the defendant- petitioner challenging order dated 26.09.2007 by which the learned Additional Munsif-II, East Champaran disposed of petition dated 20.08.2006 filed by the defendant-petitioner holding that the report - 2 - of the pleader commissioner as well as the evidence and objection thereto would be considered at the time of final hearing of the suit bearing Title Suit No.222 of 1998. 3. The aforesaid suit was filed by plaintiff-opposite party no.1 for cancellation of parcha dated 20.12.1997 issued in Basgit Parcha Case No.42/1995-96 declaring it as illegal and for permission to plaintiff to file a case against the State of Bihar without serving the notice under Section 80 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’ for the sake of brevity) and also for injunction and other ancillary reliefs. The said suit was contested by the defendants. 4. It transpires that unnecessarily the suit proceeding was delayed on one pretext or the other due to which it is pending even after passage of eleven long years. It transpires that in the meantime, the Pleader Commissioner was appointed under the provision of Order XXVI Rule 9 of the Code who submitted his report and he was also examined as witness and his report has been marked as exhibit. Against the said report, an objection was filed by the defendant-petitioner in the court below along with an application praying that the validity of the report of the pleader commissioner be decided instantly. The said prayer has been rejected by the learned court below vide its order dated 26.09.2007 which is under challenge in the instant civil revision. 5. The learned counsel for the petitioner vehemently challenges the said order on the ground that according to the provision of Order XXVI, validity of the said report of the pleader - 3 - commissioner and objection thereto has to be considered at this stage itself. In support of his contention, he has relied upon a decision of a Single Judge of this court in case of Jagdish Bhagat and others Versus Sri Baijnath Rai & Ors, reported in 2007(3) PLJR 719, as well as a decision of the Full Bench of this court in case of Asifunisa and Anr Vs. Ali Imam, reported in 1992(1) PLJR 380. 6. From a perusal of the of the said decisions, it is quite apparent that this court in both of its earlier decision had found that there are two sets of rule under Order XXVI of the Code. One is concerning Rule 9 according to which pleader commissioner is sought to be appointed for local inspection of the suit premises, whereas the other is with regard to Rules 13 and 14 onwards which is with regard to appointment of pleader commissioner for Takhta bandi at the stage of final decree proceeding in accordance with the preliminary decree. The said decision of this court had specifically distinguished the situation in both the cases holding that in case of report under Rules 13 and 14 of Order XXVI of the Code it was incumbent upon the court to either confirm or set aside the report or reports filed by the Pleader Commissioner for carving out separate share of the parties, whereas under Rules 9 and 10 of the said Order report submitted by such commission can only be treated to be an evidence in the suit and it does not stand on the same footing as a report of the Pleader Commissioner in the final decree proceeding of a partition suit. 7. This court in the said decision had also held that report of the Pleader Commissioner under Rules 9 and 10 of Order - 4 - XXVI of the Code and its objection, if filed, has to be considered by the court as it is its duty and the court has to come to its own conclusion with respect thereto. There can neither be two opinions about it nor any other view in this regard is possible, but when a report of the pleader commissioner under Rule 9 of Order XXVI of the Code is received and an objection thereto has been filed by any of the parties, the court has to consider it treating the report of the Commissioner merely as an evidence and not in the same terms as the report under Rules 13 and 14 is considered. If it has to be considered as an evidence then it has to be decided in accordance with the pleadings and other evidence of the parties as well as specific provisions of law with respect to the claim of the parties in the suit and that can very well be done at the time of final hearing of the suit. 8. In the said facts it is quite apparent that by this method, the defendant-petitioner is merely trying to delay the disposal of the suit on frivolous grounds although the suit is already more than a decade old and such dilatory attitude cannot be permitted to continue. 9. Furthermore, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below. Accordingly, this civil revision is dismissed with a direction to the trial court to expedite the hearing of the suit and dispose it of without any further delay. Sunil (S. N. Hussain, J.)